If you’re thinking about filing a medical negligence lawsuit in Missouri, one of the very first hurdles you will face is a document called an Affidavit of Merit. An Affidavit of Merit (sometimes called a Certificate of Merit) is a sworn statement signed by a qualified medical expert. In this document, the expert reviews the facts of the case and confirms that the defendant health care provider failed to meet the appropriate standard of care and that failure directly caused the injuries and damages.
You can think of the Affidavit of Merit as a gatekeeping requirement that ensures a medical negligence claim is legitimate before it proceeds through the Missouri court system. It serves key functions:
- Confirms expert support: By requiring a qualified medical expert to review the case early in the litigation process, the Affidavit ensures there is sufficient expert support for the alleged breach of the standard of care.
- Filters out frivolous claims: It discourages lawsuits based solely on dissatisfaction with treatment, the provider, or unsupported allegations of malpractice.
- Protects judicial resources: By preventing non‑meritorious cases from advancing in litigation, it helps reduce unnecessary strain on the courts, reduces costs and avoids avoidable backlogs.
Statutory Requirements of an Affidavit of Merit
The Affidavit is required only in civil lawsuits against a medical provider and is not optional. The governing law for an Affidavit of Merit can be found at RSMo § 538.225 (Missouri Revisor Statute 538.225).
In Missouri, the statute requires:
- The plaintiff/plaintiff’s attorney files the Affidavit with the court within 90 days of filing the Petition. The court can grant an extension for good cause, capped at an additional 90 days.
- The Affidavit does not need to be served to the defense.
- If there are multiple medical providers, then separate Affidavits will need to be filed for each medical provider.
- The expert’s name, address, and qualifications are identified. The Affidavit does not provide a full outline of the expert’s opinions.
- Affidavits are generally understood to require a sworn statement before a notary as a matter of standard legal practice.
Standard of Care and Its Role in the Affidavit of Merit
Standard of Care in medical negligence cases is used to determine whether a health care provider acted as a reasonably careful, and similarly trained professional, would have in the same situation. It reflects the accepted medical practices and decision‑making standards that providers with comparable qualifications are expected to follow.
When a provider’s actions fall below that standard, and their choices differ from what other qualified professionals would have done, it may indicate a breach of the standard of care. This is exactly where the Affidavit of Merit becomes essential. It provides expert confirmation needed to show the court that the provider’s breach and failure to meet that standard resulted in an injury.
Qualifications Required for an Affidavit
The expert must:
- Have the same professional license as each defendant. For example, if the provider is an orthopedic surgeon specializing in spine surgery, the expert must be a licensed orthopedic surgeon with training or experience relevant to the clinical scenario involving spine issues (consistent with the court’s findings in IMR Corp. v. Hemphill, 926 S.W.2d 542 (Mo. App. W.D. 1996) IMR Corp v Hemphill).
- Be actively practicing or within five years of retirement.
- Review the case and certify that the provider failed to use the care a reasonably prudent provider would have used, and that this failure directly caused or contributed to the injuries – this falls under the standard of care requirement.
The Affidavit of Merit is a crucial piece of the litigation process. Finding a provider to meet the criteria set out by the statute can be difficult and highlights why it is so important to work with experienced attorneys who understand the complexities of Missouri medical malpractice law. An established law firm will typically have credible medical experts already vetted. That network can make all the difference in preparing a solid affidavit and positioning your case for the best possible outcome.
Impact of Failure to File the Affidavit
If no Affidavit of Merit is filed, the defendant may file a motion asking the court to dismiss the case. The statute requires the court to dismiss the action against that defendant, though the dismissal is without prejudice, meaning the case may potentially be refiled.
Challenges to the Affidavit
A defendant may challenge the Affidavit within 180 days from when the Petition was filed. The court may review the expert’s opinion in-camera. If the court finds no probable cause that a qualified expert will testify to negligence, it may dismiss the case and can order the plaintiff to pay the defendant’s reasonable attorney’s fees and costs.
Affidavits have been challenged by defendants for:
- Lack of a clear breach of the standard of care
- Missing causal connection
- Insufficient expert qualifications
- Failure to file separate affidavits for multiple defendants
Plaintiffs have succeeded in overcoming the challenges when they show:
- The expert is properly qualified
- The affidavit meets statutory requirements
- The defendant misapplied the statute
- Procedural defects exist in the defendant’s challenge
- The case is not actually a medical malpractice action
What is an “In-Camera” Review?
Because Missouri only requires the identification of the expert in the Affidavit, not a full outline of their opinions, for the court to determine if the expert’s opinions are going to meet the statute’s requirements, the judge will conduct an “in-camera” review. This means that the judge will review the expert’s written opinion privately, outside the presence of counsel. This protects the expert’s confidentiality while allowing the judge to confirm that the Affidavit and allegations are legitimate.
Selecting an Experienced Attorney to Guide Your Claim
Pursuing claims against health care providers can be complicated, deadline‑driven, and overwhelming—especially when you are already coping with the impact of an injury. Working with a law firm experienced in personal injury and medical negligence can make all the difference. They can build the foundation your case needs, beginning with a well‑supported, expertly prepared Affidavit of Merit, positioning your case for the best possible outcome.
Call (573) 520-3127 or contact us today for a completely confidential case evaluation.Disclaimer: This content is for general informational purposes only and does not constitute legal advice or create an attorney-client relationship with Harper, Evans, Hilbrenner & Netemeyer. Individual results vary.