Court of Appeals of Missouri, Eastern District, First Division
from the Circuit Court of St. Louis County Hon. Nancy W.
G. DOWD, JR, PRESIDING JUDGE
Ferder ("Plaintiff) appeals from the judgment dismissing
her medical-negligence claim against Dr. J. Stephen Scott and
Premier Medical Specialists, LLC (collectively
"Defendants"), because the single healthcare
affidavit she filed related to all defendants and did not
strictly comply with Section 538.225.4 requiring a separate
affidavit for each defendant. We find that Plaintiff
substantially complied with the statutory requirements and
reverse and remand.
was admitted to Des Peres Hospital, where Dr. Scott, an
employee of Premier, performed a number of surgeries.
Plaintiff claimed that those surgeries caused her to sustain
multiple gastric leaks and a rupture that required multiple
additional surgeries to correct. Plaintiff maintains that she
sustained approximately $ 1, 475, 000 in medical expenses,
will continue to incur medical expenses in the future and
suffers permanent disfigurement. Plaintiff also allegedly
suffers severe emotional and mental anguish caused by this
incident. Plaintiff sued Dr. Scott, alleging that he
carelessly and negligently treated her. Plaintiff also sued
Premier and Des Peres Hospital on a theory of respondeat
superior, claiming that they were vicariously liable to her
as Dr. Scott's employers.
her petition, Plaintiff filed a healthcare affidavit stating
that counsel had obtained a written opinion from a qualified
physician as follows:
Defendants, J. Stephen Scott, M.D., Premier Medical
Specialists, LLC and Des Peres Hospital, Inc., through their
agents and employees, failed to use such care as reasonably,
prudent and careful healthcare providers would have under the
same or similar circumstances and that such failure to use
reasonable care directly caused damages to Plaintiff.
affidavit contained the name, address and qualifications of
the surgeon who provided the opinion. Plaintiff subsequently
voluntarily dismissed her claim against Des Peres Hospital,
and the remaining defendants, Dr. Scott and Premier, moved to
dismiss the petition. They argued that Plaintiff failed to
file separate healthcare affidavits for each defendant as
required by Section 538.225.4. Plaintiff argued that because
Premier was only sued as the employer of Dr. Scott, she
needed only to file one affidavit and that it substantially
complied with the statute.. The trial court dismissed the
petition without prejudice, and this appeal
Court reviews the grant of a motion to dismiss de novo.
Sillyman v. Barbe, 423 S.W.3d 304, 305 (Mo. App. S.D.
2014) (citing White v. Tariq, 299 S.W.3d 1, 3 (Mo. App. E.D.
2009)). We also review de novo the trial court's
interpretation and application of Section 538.225.
Id. The legislature mandates healthcare affidavits
for all medical-malpractice claims in Missouri as a
precondition to a valid suit:
In any action against a health care provider for damages for
personal injury or death on account of the rendering of or
failure to render health care services, the plaintiff or the
plaintiffs attorney shall file an affidavit with the court
stating that he or she has obtained the written opinion of a
legally qualified health care provider which states that the
defendant health care provider failed to use such care as a
reasonably prudent and careful health care provider would
have under similar circumstances and that such failure to use
such reasonable care directly caused or directly contributed
to cause the damages claimed in the petition.
538.225.1. The affidavit shall state the name, address, and
qualifications of the health care provider offering that
opinion, and shall be filed within ninety days of filing the
petition. See Sections 538.225.3 and 538.225.5.
"A separate affidavit shall be filed for each defendant
named in the petition." Section 538.225.4. "If the
plaintiff or his attorney fails to file such affidavit the
court shall, upon motion of any party, dismiss the action
against such moving party without prejudice." Section
538.225.6. This statute was enacted to cull at an early stage
of litigation suits that lack even the color of merit, to
protect the public and litigants from the cost of unfounded
medical malpractice claims and to weed out frivolous
lawsuits. Mahoney v. Doerhoff Surgical Services,
Inc., 807 S.W.2d 503, 507 (Mo. banc 1991);
Sillymcm, 423 S.W.3d at 307.
concedes that the affidavit she filed is technically
deficient because there was only one affidavit relating to
all the defendants and hot separate affidavits for each named
defendant. See Section 538.225.4. But she argues
that she substantially complied with the statute because the
affidavit was otherwise compliant and timely and verified
that her claims were not frivolous. Plaintiff reasons that,
because Dr. Scott is an employee of Premier and because she
alleges only a vicarious-liability claim against Premier, the
substance of her single affidavit satisfies the legislative
purpose and intent of the statute with respect to both of the
defendants. She contends substantial compliance with Section
538.225 should preclude dismissal of her petition.
argue that Section 538.225 must be strictly interpreted and
that a healthcare affidavit must comply with each and every
requirement specified in the statute or dismissal is
mandated. They rely heavily on Mayes v. St Luke's
Hospital of Kansas City for the proposition that we are
not permitted to examine whether Plaintiff substantially
complied with Section 538.225, but are limited to reviewing
only her actual compliance with each requirement of the
statute. 430 S.W.3d 260, 265 (Mo. banc 2014). In
Mayes, the Court stated that it had never addressed
whether substantial compliance can satisfy the requirements
of 538.225, but noted that a review of cases discussing
substantial compliance in other contexts "weighs against
such a finding." 430 S.W.3d at 271.
Court stopped short of actually finding that substantial
compliance was inapplicable to Section 538.225, at least with
respect to the entirety of the statute. Rather, it stated
only that the "language regarding the affidavit
requirement is unambiguous and mandatory." Id.
"The statutory language, both in terms of directing a
plaintiff to file an affidavit [in section 538.225.1] and
directing the court to dismiss the action if an affidavit is
not filed [in section 538.225.6], demonstrates that the
legislature intended the requirement that a plaintiff file an
affidavit with the court be mandatory." Id. at
271-72. But this holding was limited to the most fundamental
of the statute's requirements, namely the actual filing
of an affidavit. If the Supreme Court wanted to foreclose a
substantial compliance analysis with respect to the
healthcare affidavit statute as a whole, it would have done
so at this point in the opinion and would not had any need to
go on to address the plaintiffs argument for substantial
compliance. But it did go on to address that argument and
concluded that the plaintiffs failure Xofile any
affidavit in that case could not be considered
substantial compliance with the filing requirement.
Id. at 272. We do not believe Mayes was
intended to prevent a finding of substantial compliance with
other parts of the statute or in other factual scenarios.
we have never found substantial compliance, this Court has
addressed the merits of that argument in the context of the
healthcare affidavit statute. In Mello v. Giliberto,
the plaintiff argued she substantially complied with statute
because she had the verbal opinion of medical personnel that
her claim was not frivolous. 73 S.W.3d 669, 679-80 (Mo. App.
E.D. 2002). We did not reject the notion of substantial
compliance with the statute outright; rather, we addressed
the argument on its merits and found it had none because the
plaintiff had never filed any affidavit indicating she had a
written opinion from a qualified expert. Id. In
State ex re!. Farley v Jamison, we also squarely
addressed the plaintiffs assertion that she had substantially
complied with the statute. 346 S.W.3d 399, 400 (Mo. App. E.D.
2011). The affidavit the plaintiff filed in that case did not
contain the name, address and qualification of the provider
who gave the opinion therein as required by Section
538.225.3, but the plaintiff argued substantial compliance
because she attempted to supplement it. Id. We
rejected the plaintiffs argument on the merits under the
facts of that case, but we did not reject outright the idea
that one could substantially comply with ...