Timing is Everything: Appellate Court Confirms Section 538.225 Unambiguously Allows No More than 90 Days to File Healthcare Affidavit of Merit, Absent Timely Extension for Good Cause.

After years of varying application in circuit courts, the Court of Appeals for the Eastern District of Missouri confirmed that Section 538.225 of the Missouri Revised Statutes is clear and unambiguous: a plaintiff has a maximum of 90 days to file an affidavit of merit against a healthcare provider defendant, not an automatic extension up to 180 days. This definitive interpretation comes from the decision in Christopher Shreves v. Mercy-GoHealth Urgent Care, LLC, et al., No. ED113000, 2025 Mo. App. LEXIS 456 (App. E.D. June 24, 2025), published late last month.

Background

Purpose of Statute

The affidavit of merit requirement exists for any person bringing “any action against a health care provider for damages for personal injury on account of the rendering of or failure to render health care services.” The “affidavit” must confirm the plaintiff “obtained the written opinion of a legally qualified health care provider” stating “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 the reasonable care directly caused or directly contributed to cause the damages claimed.”[i]

The purpose of Section 538.225 is “to eliminate at the early stages of litigation” actions against health care providers which lack merit, and to protect the public against the costs of ungrounded claims against healthcare providers.[ii] This statute is mandatory and must be obeyed. The Supreme Court of Missouri has explained “the language of section 538.225 is unambiguous and mandatory, and there is no statute requiring that it be liberally construed.”[iii] Without a valid affidavit filed in support a claim against a healthcare provider, the claim “lacks even color of merit and is frivolous.”[iv] 

Underlying Case

In Shreves, the plaintiff filed suit against healthcare provider defendants on March 26, 2024, and failed to file the required affidavits within 90 days, by June 24, 2024. The defendants filed motions to dismiss on July 3, 2024. On August 9, 2024 (135 days after filing suit), the plaintiff filed a motion for extension of time to file the affidavits, including an affidavit of merit as an attachment to the motion.  On September 16, 2024, the trial court granted the defendants’ motions to dismiss and denied the plaintiff’s motion for extension of time, dismissing the case without prejudice. The Court of Appeals affirmed the trial court’s decision, explaining that a plaintiff must either file an appropriate affidavit of merit or timely request an extension of time for good cause, otherwise the court must dismiss the case, without prejudice.[v]

What This Means for the Defense

The Shreves case holds plaintiffs to strict compliance with the 90-day deadline to file an affidavit of merit or to request an extension of time.  Because the defendants in Shreves filed a motion to dismiss pursuant § 538.225.6 after plaintiff failed to file an affidavit or move for an extension within the 90 days, the appellate court held the trial court was required to grant defendants’ motion. The court did not reach the issue regarding whether plaintiff showed “good cause” for an extension of time because plaintiff’s request was untimely.

Importantly, counsel should be mindful of the 90-day deadline, and defendants should move for dismissal promptly at the conclusion of the 90 days.

Looking Ahead

This Shreves decision also comes in the wake of the United States Supreme Court agreeing to hear a case, Berk v. Choy, that asks whether a state law affidavit of merit requirement is substantive or procedural, and whether a federal court must enforce it.  We will continue to monitor the outcome of that case.[vi]