Missouri’s tort law back under review for second time in two years

For the second time in two years, the Missouri Supreme Court is taking a hard look at the constitutionality of Missouri’s tort laws.

The court last Wednesday heard arguments in a constitutional challenge to a statute that says plaintiffs in medical malpractice cases must get a doctor’s expert opinion at the outset of filing of their case. Under a 2005 law — a part of the Republican-led Legislature’s 2005 overhaul of the state’s tort laws — judges must dismiss the suit if the plaintiffs fail to file such affidavits of merit within 90 days of the lawsuit’s filing.

Last year, the Supreme Court threw out a major feature of that overhaul when it declared that a cap on noneconomic damages in medical malpractice cases violates the constitutional right to a jury trial.

But, particularly given the procedural oddities of Wednesday’s case, it’s not yet clear if the affidavit of merit statute will suffer the same fate.

The case stems from the death of 75-year-old Ira Mayes 24 days after he went to St. Luke’s Hospital in Kansas City for a follow-up procedure to a previous heart surgery. The procedure left an open wound in his chest, which he was instructed to pack with gauze twice a day. Mayes, however, had trouble dressing the wound properly, and it became fatally infected.

Mayes’ family sued St. Luke’s and the treating doctor, Richard Stuart, in Jackson County Circuit Court in 2010, alleging that Mayes hadn’t been given adequate instructions on how to treat his wound, leading to his death. Affidavits from Dr. Richard Berg, of Johns Hopkins and Sinai Hospital in Baltimore, Md., alleged that the defendants had breached the standard of care.

Discovery proceeded for more than a year, during which Berg was deposed. In August 2011, however, the plaintiffs voluntarily dismissed the case. (Leland Dempsey, of Dempsey & Kingsland in Kansas City, who represented the Mayes in the trial court, said in an interview that the move was designed to get the case before a new judge after the deadline for change-of-judge motions had passed.)

The parties agreed to transfer the discovery from the first case. The plaintiffs, however, didn’t file new copies of Berg’s affidavits. A year after the second case’s filing, the defense raised the issue of the missing affidavits, and the trial court dismissed the case.

Hank Stitt, of Shaffer Lombardo Shurin in Kansas City, who represented the sued doctor, said the filing of the affidavit was an unambiguous “threshold requirement” that hadn’t been met.

“The real purpose here is to ensure, to some extent, that frivolous cases are either not filed or else don’t hang out on the docket very long,” Stitt said.

The defendants said that while they agreed to transfer the discovery from the first case, that informal agreement did not include the affidavits. Berg’s deposition, they argued, did not satisfy the statute.

“It’s really a different animal,” said Sarah Ruane, of Wagstaff & Cartmell in Kansas City, an attorney for St. Luke’s.

The plaintiffs were allowed to file suit again. By that time, however, the statute of limitations had run out, so the third case was dismissed as well.

Jonathan Sternberg, an attorney representing the plaintiffs on appeal, said his clients had substantially complied with the intent of the affidavit statute by transferring the discovery from the first case.

“What they’re harping on, the only thing they’re talking about, is our failure to complete this technicality of filing a piece of paper in court,” Sternberg said.

But his larger argument was that the affidavit statute violates the Missouri Constitution’s “open courts” provision, which guarantees that aggrieved parties will have access to the court system.

The Missouri Supreme Court in the past has taken a dim view of statutes that require a third party to take some kind of action before plaintiffs can sue. In 1979, the court invalidated a law that required a professional liability board to review medical malpractice cases prior to filing. Similarly, the court in 2000 said plaintiffs who had been injured by a drunken driver could sue the bar that served the driver even if the bar hadn’t been convicted criminally.

The judges on Wednesday, however, drew a sharp distinction between those earlier cases and the affidavit of merit statute.

Judge Patricia Breckenridge noted that a prosecutor, for instance, served as a “gatekeeper,” while the expert’s affidavit served to prove the merits of the case. Or, as Judge Zel Fischer put it: “I can’t shop outside my county to find a prosecutor to file my charge, but I can dutifully look the world over for an expert who has an opinion that justifies my case.”

Judge Paul Wilson pointed out that, unlike in cases where the outside expert’s lack of action had prevented the suit from being filed, the plaintiffs in this case had gotten the testimony they needed.

“This might be an interesting argument from somebody who couldn’t get an affidavit,” he said. “But you did.”

“Your honor,” Sternberg replied, “the point is we shouldn’t have had to file them in the first place.”

Still, it was not lost on the court that the suit had been dismissed on a procedural failing that the defense raised late in the game.

“Are you saying you got kind of sandbagged, or that it was invited error?” Chief Justice Mary Russell asked Sternberg.

“Colloquially, your honor, I would call it sandbagging,” he responded.

Ruane denied that the defense had sprung the issue on the plaintiffs unfairly. She also argued that, had lawmakers intended there to be a time limit on when the defense could seek to dismiss a case over a missing affidavit, they would have put such a deadline in the law.

The case is Mayes v. Saint Luke’s Hospital of Kansas City et al., SC93012.