Health Care Affidavits: an Unfair Barrier to our Justice System?

To bring an action against a health care provider for damages or personal injury, a Missouri statute requires plaintiffs file health care affidavits stating that they have a written opinion of a legally qualified health care expert who believes the provider's failure to provide reasonable care caused or contributed to the damages claimed in the lawsuit. Section 538.225, RSMo. 2000. In cases against multiple defendants with multiple specialties, the requirement of a "legally qualified health care provider" who actively practices "substantially the same specialty" as each defendant can present quite a financial burden. Current Missouri law requiring these affidavits may create arbitrary barriers to the courts which are especially onerous for those who cannot afford to pay experts out of pocket.

Article I, § 14 of the Missouri Constitution, commonly known as the "open courts" provision, states "[t]hat the courts of justice shall be open to every person, and certain remedy afforded for every injury to person, property or character, and that right and justice shall be administered without sale, denial or delay." Mo. I, § 14. Missouri's judicial system is the primary means through which Missouri citizens can protect their rights. The Missouri Constitution's "open courts" provision seeks to ensure that all citizens have the chance to protect their rights and seek remedies for injuries in court. In 2000, the Missouri Supreme Court held that, "[p]ut most simply, article I, section 14 'prohibits any law that arbitrarily or unreasonably bars individuals or classes of individuals from accessing our courts in order to enforce recognized causes of action for personal injury.'" Kilmer v. Mun, 17 S.W.3d 545, 549-50 (Mo. 2000) (quoting Wheeler v. Briggs, 941 S.W.2d at 515 (Holstein, C.J., dissenting)).

While Missouri courts will continue to wrestle with the question of the medical affidavit requirement's constitutionality, the requirement has profound and immediate effects. Most significantly, plaintiffs with meritorious claims must consider the costs of obtaining medical affidavits before filing their claim. Many of these victims have endured mounting medical bills which prevent them from paying experts out of pocket. Piling further costs on these victims prior to giving them a chance to be compensated for their injuries only further restricts their access to the courts and their ability to protect themselves.

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