The Supreme Court heard arguments last month in a case that asks it to permit plaintiffs’ attorneys to file medical malpractice affidavits out of time, pursuant to Rule 44.01.
Under Section 538.225(1) of the Missouri Revised Statute, plaintiffs’ lawyers are required to file an affidavit from a healthcare provider certifying the merits of the case within 90 days of the file-stamped complaint with the possibility of a 90 day extension.
“The plaintiffs are trying to (get) rule that the statute is unconstitutional in this circumstance and I'll admit I'm skeptical of their arguments,” said attorney John Reeves of Reeves Law, a solo appellate practitioner in St. Louis
Rule 44.01 provides the court with discretion to expand the time to file a motion when a litigant has failed under a requirement.
“Rule 44.01 has always been held to be inapplicable to the statute of limitations because the legislature has specified that as a substantive thing and, in any event, the rule doesn't even apply here because it only applies to deadlines that the court rules themselves set, not deadlines under laws passed by the Missouri state legislature,” Reeves told the St. Louis Record.
Section 538.225(1) of the Missouri Revised Statute became effective on Aug. 28, 2005.
“Defense attorneys would say affidavits are an important matter to weed out frivolous plaintiff's lawsuits and that’s why the statute’s requirement was strengthened in 2005,” Reeves said. “You need to have an affidavit from a specialist saying that the case isn’t frivolous and, understandably, the plaintiff's bar is upset about that because it means they have to choose their cases more carefully.”
The underlying case involves A.J. Giudicy who sued Mercy Hospitals East Communities and a doctor in 2014 for allegedly mistreating a birth condition, according to media reports.
The required affidavits were attached, however after the case was voluntarily dismissed in 2019 and refiled the next year, an affidavit was not included.
“Plaintiff’s counsel has not given any legitimate reason why they couldn't have filed the affidavit within the time limit of their initial lawsuit other than some vague reason about COVID and requirements that everyone works from home but in this day of e-filing where it's easy to get affidavits online, I just don't see that being a legitimate reason,” Reeves said.
In 2015, the Missouri Supreme Court upheld the requirements in Lang v. Goldsworthy.
"The Court may set a precedent in terms of why the plaintiff loses in this case but I don't think it will be a precedent against the statute," Reeves added.