Missouri Appellate Court Holds Affidavit of Merit Requirement Inapplicable to Privacy Breach Claim Against Hospital

ABSTRACT: In September 2023, the Missouri Court of Appeals, Eastern District, reversed a trial court’s judgment granting Poplar Bluff Regional Medical Center’s (PBRMC) motion to dismiss for plaintiff’s failure to file an “affidavit of merit,” as prescribed by RSMo. § 538.225. The statute provides that in a personal injury or wrongful death action, the plaintiff must certify in an affidavit that he or she has obtained the written opinion of a legally qualified health care provider that the defendant failed to exercise reasonable care, and that this caused or contributed to the alleged injury.

J.J. v. Poplar Bluff Regional Medical Center, LLC was a suit brought by a minor psychiatric patient alleging the hospital breached its fiduciary duty of confidentiality and violated HIPAA, the Health Information Technology Act (HITECH), and the Missouri Merchandising Practices Act when a PBRMC employee, who was uninvolved in the plaintiff’s medical treatment, accessed his mental health records and disclosed his protected health information to the employee’s daughter. The daughter, a school classmate of the plaintiff, then is alleged to have disclosed this information to other students in the school. Plaintiff claims this was an invasion of privacy that led to his being harassed and bullied at school.

The trial court granted PBRMC’s motion to dismiss under RSMo. § 538.225.1 on the grounds that the plaintiff failed to file the statutorily required affidavit of merit applicable to suits against health care providers arising out of the provision of health care services. Plaintiff appealed, successfully arguing that Section 538.225’s affidavit requirement did not apply to his claim.

On appeal, the court applied a two-part test to determine whether an affidavit of merit was required: (1) whether the relationship between the parties is that of a health care provider and recipient; and (2) whether the claims relate solely to the provision of health care services. The court acknowledged the first part was easily met in that the plaintiff received healthcare services at PBRMC. However, the second part was more difficult and dispositive. The court reviewed RSMo. § 538.205.7 and determined “health care services” necessarily involve a question of professional judgment, and the affidavit of merit requirement only applies to claims of alleged injury from the rendering of or failure to render health care services involving professional judgment. However, that does not mean this requirement is limited solely to medical negligence claims – it applies to various other types of claims against healthcare providers, such as claims for surgical battery, lack of informed consent, libel, and others.

Turning to the facts of the case, the court noted that other Missouri courts had determined a health care provider’s duty to keep medical records confidential is not a “health care service” under Section 538.225 because it is an administrative duty incidental to medical treatment and does not necessarily involve a question of professional judgment that complies with a reasonable standard of care. Therefore, because the plaintiff’s claims stemmed solely from an alleged breach of confidentiality, and did not involve a question or professional judgment, the court held an affidavit of merit was not required and the trial court erred in dismissing the case. The appellate holding is limited to the plaintiff’s recitation of the facts specific to this case, which the court accepted as true, that the alleged privacy breach did not involve a question of professional judgment and was more akin to “an act of gossip” by a PBRMC employee who was uninvolved in the plaintiff’s care.