A plaintiff who filed expert affidavits 18 days too late in a medical malpractice lawsuit and challenged a Missouri law that required dismissal has lost his Missouri Supreme Court appeal.
Alfred J. Giudicy’s legal counsel was supposed to file expert opinions in support of Alfred J. Giudicy v. Mercy Hospitals East Communities et al within 90 days of the initial 2020 complaint.
“If you are a practitioner, you have to be alert to what kind of deadline you're dealing with and if it's something that shows up in a statute if that statute doesn't cut you slack and give you leeway, you can have a serious problem for missing a deadline,” said David Eisenberg, an attorney with Baker Sterchi Cowden & Rice and editor of the firm's Missouri Law Blog.
In Giudicy’s case, his attorney had already received a 180-day extension on the original 90-day deadline pursuant to Rule 44.01(b).
“The Supreme Court said that these statutory deadlines are not extendable by the court and the court's own rule permits for extension only if deadlines are imposed by a court order or a rule,” Eisenberg told the St. Louis Record. “It doesn't authorize the extension of statutory deadlines. The statute itself says you can extend from 90 to 180 days but doesn't provide for any further extension by the court or anything else.”
Giudicy’s underlying claim alleges negligent treatment of a congenital disorder, according to media reports.
“The whole point of this statute and the legislature made it clear is that in medical malpractice cases, they want an affidavit of merit to be on file quickly so that courts can quickly call out claims that can't get a competent doctor to vouch for,” Eisenberg said. “This is not a usurpation of the court's rules to manage its deadlines. This is something that's directed at ferreting out frivolous claims.”
The ruling, however, is not fatal to Giudicy’s case, according to Eisenberg.
“This is a dismissal without prejudice, which presumably means in most circumstances that the plaintiff can go back and refile the case,” he said. “I suspect it would behoove them to get another affidavit of merit on file very quickly on refiling the case.”
Giudicy isn't the first plaintiff to challenge the Missouri law. The Supreme Court upheld affidavits of merit in 2018 in Hink v. Helfrich.
"If any defendant in the case makes a motion saying you've got to dismiss because they missed the deadline, there is no discretion to the court to do anything other than dismiss the case without prejudice," Eisenberg added.