Effective 28 Aug 2005

538.225. Affidavit by a health care provider certifying merit of case — legally qualified health care provider, defined — content filed, when — failure to file, effect — in camera review, when. — 1. 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 plaintiff's 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.

2. As used in this section, the term "legally qualified health care provider" shall mean a health care provider licensed in this state or any other state in the same profession as the defendant and either actively practicing or within five years of retirement from actively practicing substantially the same specialty as the defendant.

3. The affidavit shall state the name, address, and qualifications of such health care providers to offer such opinion.

4. A separate affidavit shall be filed for each defendant named in the petition.

5. Such affidavit shall be filed no later than ninety days after the filing of the petition unless the court, for good cause shown, orders that such time be extended for a period of time not to exceed an additional ninety days.

6. 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.

7. Within one hundred eighty days after the filing of the petition, any defendant may file a motion to have the court examine in camera the aforesaid opinion and if the court determines that the opinion fails to meet the requirements of this section, then the court shall conduct a hearing within thirty days to determine whether there is probable cause to believe that one or more qualified and competent health care providers will testify that the plaintiff was injured due to medical negligence by a defendant. If the court finds that there is no such probable cause, the court shall dismiss the petition and hold the plaintiff responsible for the payment of the defendant's reasonable attorney fees and costs.

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(L. 1986 S.B. 663 § 8, A.L. 2005 H.B. 393)

CROSS REFERENCE:

Applicability of statute changes to cases filed after August 28, 2005, 538.305

(1991) Statute does not violate constitutional right to jury trial or right of access to courts or other constitutional protections when a judgment of dismissal is entered because plaintiff fails to file an affidavit stating he had a health care provider's opinion of merit. Statute's requirement that affidavit must be filed within ninety days of filing a medical malpractice suit is constitutional. Mahoney v. Doerhoff Surgical Service, 807 S.W.2d 503 (Mo.banc).

(2000) Strict liability is not applicable to health care providers. Budding v. SSM Healthcare System, 19 S.W.3d 678 (Mo.banc).