Heyl Royster Secures Dismissal of Medical Malpractice Claim Under Missouri Affidavit Statute

Heyl Royster’s St. Louis office recently achieved a significant legal victory by securing a dismissal of a medical malpractice claim. The dismissal was granted after the firm successfully challenged the adequacy of an affidavit submitted under Section 538.225 of the Revised Statutes of Missouri—a statute governing the requirements for affidavits in medical malpractice cases.

The case centered on an OB-GYN who was sued after removing a surgical drain that had been initially placed by another physician.  The patient had been referred to the OB-GYN for the drain removal by a nurse working with an interventional radiologist.  According to the plaintiff, the OB-GYN’s removal of the drain, prior to conducting a CT scan or blood test, violated the standard of care and allegedly caused a bowel perforation.  The plaintiff’s allegations were supported by an affidavit from an infectious disease physician who simply referenced the boiler plate language from the statute, to wit:  Defendant “failed to use such care as a reasonably prudent and care [sic] 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 Plaintiff’s Petition.”

Missouri law allows a qualified healthcare provider offering expert testimony to practice outside of the field or specialty of the defendant but the statute requires that the affiant be in a practice that is “substantially similar” to that of the defendant.  In this case, the trial court agreed with Heyl Royster’s argument that the affidavit was insufficient.  The affidavit did not indicate that the infectious disease physician practiced in a field “substantially similar” to that of the OB-GYN defendant.  Moreover, the plaintiff failed to supplement the affidavit with a CV or additional averments to satisfy the statute’s requirements.  The court also noted that the specific averments of the breach of the standard of care set out in the petition were not mentioned or referenced in the affidavit. Accordingly, the case was dismissed pursuant to 538.225.

The case was handled by Richard Hunsaker, Managing Partner of the St. Louis office, with the assistance of Abhi Nair, an associate attorney also practicing in the St. Louis office.