Missouri Appellate Court Affirms Dismissal Of Medical Malpractice Case Due To Unsigned Affidavit

Missouri Medical Malpractice Law

Court Affirms Dismissal Of Case Due To Unsigned Affidavit: Section 538.225, which governs the requirements for filing medical malpractice claims, states: “In any action against a health care provider for damages for personal injury or death on account of the rendering of or failure to render health care services, the plaintiff or the plaintiff’s attorney shall file an affidavit with the court stating that he or she has obtained the written opinion of a legally qualified health care provider which states that the defendant health care provider failed to use such care as a reasonably prudent and 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 petition.”

Alleged Facts

On August 21, 2018, in the emergency room at Parkland Health Center in Farmington, Missouri, Nurse Practitioner Kay Lynn Day (“Day”) treated Jimmy D. Cook (“Cook”) for an eye injury. Cook alleged that the care provided by Day amounted to medical malpractice because she should have immediately referred him to an ophthalmologist. Cook is now completely blind in his left eye.

Dr. Brown was the attending emergency room physician on the night Cook was treated. Dr. Clippard was Day’s supervisor through a collaborative practice agreement, which allowed Dr. Clippard to delegate certain medical treatments to Day. Neither Dr. Brown nor Dr. Clippard treated Cook.

Cook originally filed suit against Dr. Brown, among other defendants, in August 2020. The circuit court dismissed the petition for failure to file a statutorily compliant affidavit pursuant to Section 538.225. Cook then refiled suit on May 24, 2021, bringing a petition (“Petition”) against Dr. Brown and Dr. Clippard, among other defendants. Cook filed a purported affidavit of merit (the “Affidavit”) for the claim against Dr. Brown on August 19, 2021.

After the time for filing an affidavit of merit had passed, Dr. Clippard moved to dismiss the Petition’s claim against him. Dr. Clippard argued that Cook did not comply with Section 538.225 because he failed to file an affidavit of merit. Dr. Brown also moved to dismiss the Petition’s claim against him, arguing that the Affidavit was statutorily noncompliant because it was unsigned. Cook opposed both motions and moved for the circuit court to allow him to file a signed affidavit out of time under Rule 55.033 or, alternatively, to enter a nunc pro tunc order accepting the Affidavit corrected with a signature.

The circuit court held a motion hearing on Cook’s nunc pro tunc motion and Dr. Brown’s and Dr. Clippard’s motions to dismiss. At the hearing, Dr. Brown argued that Missouri law clearly requires affidavits to be signed to be effective, and thus the unsigned Affidavit mandates dismissal of Cook’s claim against him. Cook maintained that Section 538.225 does not require a signed affidavit and that the Affidavit was otherwise sufficient. Dr. Brown further argued that a nunc pro tunc order was not appropriate because it is intended to correct clerical errors in the record or in judgments, not affidavits.

The circuit court granted both Dr. Brown’s and Dr. Clippard’s motions and dismissed the Petition’s claims against both physicians. The circuit court denied Cook’s nunc pro tunc motion to correct the lack of signature on the Affidavit. Cook appealed.

In its opinion filed on June 13, 2023, the Missouri Court of Appeals Eastern District Southern Division (“Missouri Appellate Court”) stated: “Missouri caselaw clearly holds that the signature of the affiant is required for an affidavit to be effective … Cook identifies no Missouri jurisprudence allowing us to deviate from the clearly stated requirement that an affidavit must contain the signature of the affiant. See Zitko, 386 S.W.2d at 69. Until the Supreme Court elects to deviate from its definition of an affidavit set forth in Zitko, litigants filing medical malpractice cases must strictly adhere to the requirements of Section 538.225 and file a fully signed and executed affidavit within the time set by the statute.”

The Missouri Appellate Court held: “a signature of the affiant is required for an affidavit to comply with Section 538.225, otherwise it “is no affidavit at all.” See Zitko, 386 S.W.2d at 69. Because the Affidavit lacked a signature, Cook failed to comply with Section 538.225, and the circuit court was statutorily required to dismiss the claims against Dr. Brown.”

Source Cook v. Parkland Health Center, No. ED111044.

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