Stephen H. Ringkamp
Medical malpractice/wrongful death action against hospital and physician. Section 538.225 affidavit of Plaintiff failed to include name, address, and qualifications of Plaintiff’s expert. The trial court dismissed without prejudice for failure to comply with § 538.225. It was not sufficient that this action was the re-filing of a previous action in which defense counsel had agreed to use of discovery from the prior action, and the discovery from the prior action contained the deposition and curriculum vitae of Plaintiff›s expert. Dismissal without prejudice affirmed. Sillyman v. Barbe, No. 32778 (Mo. App. S.D., February 20, 2014), Sheffield, J.
This medical malpractice/wrongful death case was brought in connection with the death of Plaintiff’s 20 year-old son. Plaintiff’s affidavits against the Defendants did not include the name, address, and qualifications of the healthcare provider who provided the opinion to Plaintiff’s counsel as required by § 538.225.3. Defendants moved to dismiss for failure to comply with § 538.225. Plaintiff responded that the affidavits were sufficient because the necessary information was otherwise available. Plaintiff argued that this action was the re-filing of a previous action in which defense counsel had agreed that discovery in the prior action could be used in this case. That discovery from the prior action contained the deposition and curriculum vitae of Plaintiff's expert.
Held: Dismissal without prejudice affirmed. The plain language of § 538.225.3 requires that the affidavit state the name, address, and qualifications of such healthcare providers who provided the required opinion to Plaintiff's counsel. The statute's language is unambiguous. The affidavit did not “substantially comply” with the statute.