Trial court sanctions medical malpractice plaintiff counsel for false affidavits of merit.

Affidavits have always occupied a critical role in litigation. They are sworn statements used to support motions, satisfy statutory requirements, establish service, verify discovery responses, and authenticate facts. Because courts often rely on affidavits without live testimony, their integrity is essential.

A false affidavit can take many forms:

• Claiming personal knowledge the affiant does not possess
• Misstating dates, communications, or records
• Omitting material qualifications or limitations
• Attaching altered or incomplete documents
• Signing without review or without understanding the contents

In healthcare liability cases, affidavits of merit are particularly significant. Under Missouri law, § 538.225, RSMo, a plaintiff in a healthcare liability case must file an affidavit confirming that a legally qualified healthcare provider has provided a written opinion that the defendant failed to use the required degree of care and caused the damage claimed in the petition. “The purpose of § 538.225 is to eliminate at the early stages of litigation the medical malpractice actions against health care providers which lack the color of merit and to protect the public against the costs of ungrounded medical malpractice claims.” Morrison v. St. Luke’s Health Corp., 929 S.W.2d 898, 901 (Mo. App. E.D. 1992) (citing, Mahoney v. Doerhoff Surgical Services, Inc., 807 S.W.2d 503, 510 (Mo. banc 1991)). As demonstrated in the case discussed below, courts take this affidavit requirement seriously and view misrepresentations in an affidavit to be serious misconduct.

In Janet Meier v. Mosaic Medical Center–Maryville, et al., Case No. 24ND-CC00112, a medical negligence/wrongful death case, the trial court found the plaintiff attorney failed to comply with the statute because several of his seven affidavits of merit were false when signed and filed in that the required written opinions had not been obtained at the time of filing. Defense counsel discovered the affidavit issues when deposing plaintiff’s experts. Defense counsel filed a motion for sanctions and to dismiss, under Camden v. Hamley, 306 S.W.3d 680 (Mo.App. S.D. 2010) (reversing dismissal as a sanction for a false affidavit of merit because it punished the party rather than the attorney and remanding with instructions to consider appropriate sanctions against the attorney and/or law firm).

The trial court found the four affidavits against the four nurse defendants were knowingly false because plaintiff’s counsel had not obtained a written opinion from the nurse expert when he signed and filed the affidavits. Even though he later obtained a written opinion, that did not change the fact that the affidavits were false at the time of filing. The trial court dismissed the claims against the four nurse defendants without prejudice as a statutory remedy. On the other hand, plaintiff’s counsel did in fact have a written opinion from his physician expert before filing related affidavits of merit. The trial court entered an order with a serious package of remedies that serves as a clear warning to practitioners and underscores exposure under Missouri Rule 55.03, which requires that factual contentions in filings have evidentiary support. The court order included the following sanctions:

• Barred the plaintiff from adding parties
• Authorized $75,000 in attorney’s fees as a sanction and staying the case until satisfied
• Referred counsel to disciplinary authorities under Rule 4-3.3 (for false statements to tribunal)

The court docket reflects that, less than one month after the court awarded attorney’s fees, the parties reported “settlement of all issues.”

Practitioners should scrutinize affidavits early. Common red flags include:

• Overly generic or formulaic language
• Statements beyond the affiant’s expertise or role
• Lack of foundation for key assertions
• Missing or inconsistent supporting materials
• Notarization irregularities
• Unusual formatting or citation inconsistencies

When a false affidavit appears in litigation, counsel should respond both strategically and ethically. Not every instance is intentional misconduct—some could be mistakes—so a meet-and-confer is often an appropriate first step. Depending on the response, options may include:

• Demanding withdrawal or correction
• Filing a motion to strike
• Seeking sanctions