Too Little, Too Late – Untimely Filed Affidavit of Merit Requires Dismissal of Medical Negligence Lawsuit
Giudicy v. Mercy Hosps. E. Cmtys., 645 S.W.3d 492 (Mo. 2022) is a Supreme Court of Missouri case that dealt with the statutory affidavit of merit requirement in a medical negligence suit. Mo. Rev. Stat. § 538.225 requires a plaintiff to file an affidavit of merit against each defendant within 90 days after suit has been filed. The statute permits a court to extend the deadline, but not longer than 90 days, meaning there is an absolute 180-day deadline for the filing of an affidavit of merit. An affidavit of merit must be signed by the plaintiff or her attorney and state that she has obtained a written opinion from a legally qualified health care provider stating the defendant health care provider failed to use reasonable care, and that failure caused the plaintiff’s damages.
In Giudicy, the plaintiff was born at Mercy Hospital St. Louis with a rare congenital condition that required several surgeries. In January 2014, Giudicy sued the hospital and the surgeon who performed the surgeries. One month later, Giudicy filed an affidavit of merit against each defendant. Several years later, in May 2019, the plaintiff voluntarily dismissed the action, without prejudice to re-filing. In January 2020, Giudicy filed a second suit against the hospital and the surgeon. For reasons unknown, Giudicy failed to file the affidavits of merit until 198 days after filing suit. The defendants filed a motion to dismiss for failure to timely file the affidavits before the deadline. The trial court granted the motion and dismissed the case (this dismissal was effectively with prejudice considering the underlying limitations period had expired, and the plaintiff has already utilized the savings statute to re-file the suit).
On appeal, the plaintiff argued six points, each of which the Supreme Court rejected. The first four points involved various arguments that § 538.225 violates the Missouri Constitution. The final two points concerned waiver and substantial compliance arguments addressed below.
First, Giudicy argued the defendants waived the affidavit of merit issue because they failed to raise it as one of the affirmative defenses included in their answers to the petition. The Court found the statutory requirement is not a true affirmative defense that is waived if not pleaded, as there is no statute or other law finding as such. Part of the reason for this conclusion is that the 30-day deadline for filing an answer comes before the 90-day (up to 180-day) deadline for filing an affidavit of merit. Thus, it is unrealistic to require a defendant to plead as an affirmative defense a plaintiff’s failure to file an affidavit of merit months before the statutory deadline has expired. The defendants followed the procedure outlined in § 538.225 for raising the affidavit issue in a motion to dismiss.
Finally, Giudicy argued the trial court erred in rejecting his argument and dismissing the suit because he substantially complied with the statute despite the untimely filing of the affidavits. The plaintiff argued he substantially complied with the statute because the substance of each affidavit was appropriate, and his failure to meet the 180-day deadline was a mere technicality. The Supreme Court found the failure to timely file an affidavit of merit does not constitute substantial compliance. The purpose of § 538.225 is to weed out, during the early stages, frivolous medical negligence suits. Allowing a plaintiff to file an affidavit or merit outside after the statutory deadline infringes on that purpose.The Giudicy opinion is important because it upheld the statutory mandate requiring the timely filing of an appropriate affidavit of merit against each defendant, or the suit must be dismissed. The Court’s rejection of plaintiff’s substantial compliance argument reflects a bright line rule that a plaintiff must strictly comply with the statutory mandate or risk dismissal.