529 S.W.3d 326
Mo. Ct. App.2017Background
- Plaintiff sued a surgeon for negligent use of a biologic bone-growth stimulant during spinal surgery, alleging non‑approved use and lack of informed consent after exuberant bone growth and complications.
- Plaintiff’s attorney timely filed a § 538.225 notice affidavit referencing a written opinion from Dr. Ronnie Keith (general surgeon, board‑certified) as the expert of merit.
- Defendant moved to dismiss under § 538.225, arguing Dr. Keith did not practice "substantially the same specialty" as the defendant and thus was not a "legally qualified health care provider."
- The trial court reviewed Dr. Keith’s opinion in camera, found he lacked requisite specialty/experience, deemed the affidavit defective under subsection 6, and dismissed the case without prejudice after the notice deadline passed.
- Plaintiff invoked subsection 7 and obtained a probable‑cause hearing where a different neurosurgeon (Dr. Beatty) testified he would be a trial expert; the trial court rejected that and dismissed, concluding the probable‑cause witness must be the same person named in the affidavit.
- On appeal the court considered whether a deficiency in the named expert’s qualifications is an affidavit defect (subsection 6) or an opinion defect addressed under subsection 7, and whether a substitute expert at a subsection 7 hearing suffices.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Dr. Keith practiced "substantially the same specialty" as defendant | Dr. Keith’s qualifications suffice to be a legally qualified provider | Dr. Keith lacked relevant neurosurgical experience; affidavit thus defective | Court held Dr. Keith was not shown to practice substantially the same specialty (challenge denied) |
| Whether a challenged expert’s lack of qualification is an affidavit defect (subsection 6) or an opinion defect (subsection 7) | Such a qualification issue is an opinion defect governed by subsection 7, not an affidavit defect requiring dismissal | The alleged nonqualification invalidates the affidavit and mandates dismissal under subsection 6 | Court held qualification is an issue with the written opinion (subsection 7), not a mandatory affidavit defect; affidavit should not be stricken on that basis |
| Whether subsection 7 probable‑cause witnesses must be the same experts named in the affidavit | Subsection 7 allows consideration of other qualified providers at the hearing | The probable‑cause witness must be the same person(s) identified in the affidavit to preserve the statute’s notice function | Court rejected the requirement that subsection 7 witnesses be the same persons named in the affidavit; substitutes may be considered |
| Remedy for a deficient opinion identified after timely affidavit filing | Remand for subsection 7 probable‑cause proceedings and evaluation of substitute experts | Dismissal without prejudice under subsection 6 because affidavit was defective | Court reversed dismissal and remanded for proceedings consistent with subsection 7 (no automatic subsection 6 dismissal) |
Key Cases Cited
- Spradling v. SSM Health Care St. Louis, 313 S.W.3d 683 (Mo. banc 2010) (expert qualifies by board certification or demonstrated experience with the specific procedure)
- Kreutz v. Curators of Univ. of Missouri, 363 S.W.3d 61 (Mo. App. W.D. 2011) (opining pathologist lacked requisite specialty; dismissal affirmed)
- Mayes v. Saint Luke’s Hosp., 430 S.W.3d 260 (Mo. banc 2014) (§ 538.225 affidavit requirements are strictly enforced)
- Lang v. Goldsworthy, 470 S.W.3d 748 (Mo. banc 2015) (dismissal for noncompliant § 538.225 affidavit is appealable)
- Austin v. Schiro, 466 S.W.3d 694 (Mo. App. W.D. 2015) (de novo review of § 538.225 dismissal)