The Missouri Supreme Court has affirmed a circuit court's dismissal of a medical malpractice case involving a patient born with rare congenital conditions, rejecting constitutional challenges to the state's affidavit of merit requirement and upholding strict enforcement of procedural deadlines.

In *Alfred J. (A.J.) Giudicy v. Mercy Hospitals East Communities f/k/a St. John's Mercy Medical Center, and Michael J. Chehval, M.D.* (Mo. 2022), the high court ruled that plaintiff Alfred Giudicy's failure to file a required affidavit of merit within 180 days pursuant to Missouri statute section 538.225 warranted dismissal of his medical malpractice claims.

Giudicy was born on Feb. 5, 1997, at Mercy Hospitals East Communities with epispadias and associated bladder exstrophy, rare congenital conditions affecting the urinary tract. Between his birth and May 1999, Giudicy underwent four surgeries related to these conditions, all performed by Dr. Michael J. Chehval at Mercy Hospital.

In January 2014, Giudicy filed suit through his mother as next friend, alleging that the medical treatment provided by both Mercy Hospital and Dr. Chehval was negligent and resulted in significant injuries and damages. The following month, Giudicy's counsel filed two affidavits of merit as required by Missouri law - one related to each defendant.

Missouri's affidavit of merit statute, section 538.225, requires plaintiffs in medical malpractice cases to file an affidavit within 180 days stating that counsel has obtained a written opinion from a qualified health care provider supporting the malpractice claim. This procedural requirement is designed to screen out frivolous medical malpractice lawsuits before they proceed to discovery and trial.

The circuit court ultimately dismissed Giudicy's case without prejudice for failure to comply with the affidavit requirements. Giudicy appealed, raising three primary arguments before the Missouri Supreme Court.

First, Giudicy argued that section 538.225 violates multiple provisions of the Missouri Constitution. The court did not detail the specific constitutional provisions cited in the available portion of the opinion, but constitutional challenges to affidavit of merit statutes typically focus on due process, equal protection, and access to courts arguments.

Second, Giudicy contended that the defendants waived their right to assert the affidavit of merit defense. Waiver arguments in this context often focus on whether defendants properly and timely raised the defense or whether their conduct suggested they were proceeding on the merits of the case.

Third, Giudicy argued that he had substantially complied with the affidavit of merit requirement even if technical compliance was lacking. Substantial compliance arguments typically assert that while the exact statutory requirements may not have been met, the plaintiff's actions served the underlying purpose of the statute.

The Missouri Supreme Court rejected all three arguments and affirmed the circuit court's dismissal. The court's holding reinforces that Missouri's affidavit of merit requirement will be strictly enforced, with limited tolerance for procedural deviations.

The case highlights the continuing tension between procedural requirements designed to filter medical malpractice claims and plaintiffs' access to the courts. Affidavit of merit statutes have been adopted in numerous states as part of broader tort reform efforts aimed at reducing medical malpractice litigation.

For medical malpractice plaintiffs in Missouri, the decision serves as a reminder that strict compliance with procedural requirements is essential. The 180-day deadline for filing affidavits of merit appears to be firmly enforced, regardless of the merits of the underlying malpractice claim.

The ruling also demonstrates the Missouri Supreme Court's reluctance to find constitutional infirmities in the state's medical malpractice procedures. The court's rejection of Giudicy's constitutional challenges suggests that similar attacks on the affidavit requirement are unlikely to succeed in future cases.

For medical providers and their insurers, the decision provides continued protection from medical malpractice suits that fail to meet Missouri's procedural requirements. The strict enforcement of affidavit requirements may discourage some potential plaintiffs from pursuing claims or encourage early resolution of cases where compliance issues exist.

The case was appealed from the Circuit Court of St. Louis County, where Judge Ellen H. Ribaudo presided over the original dismissal. The Missouri Supreme Court heard the case en banc and issued its opinion on June 14, 2022.

While the dismissal was without prejudice, meaning Giudicy could potentially refile his claims if he can cure the procedural defects, the practical impact may be significant given the passage of time and potential statute of limitations issues.