Missouri Revised Statutes

Mo. Rev. Stat. § 538.225 (2026)

Affidavit by a health care provider certifying merit of case

✓ current as of May 2026

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538.225. Affidavit by a health care provider certifying merit of case — legally qualified health care provider, defined — content filed, when — failure to file, effect — in camera review, when. — 1. 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.

2. As used in this section, the term "legally qualified health care provider" shall mean a health care provider licensed in this state or any other state in the same profession as the defendant and either actively practicing or within five years of retirement from actively practicing substantially the same specialty as the defendant.

3. The affidavit shall state the name, address, and qualifications of such health care providers to offer such opinion.

4. A separate affidavit shall be filed for each defendant named in the petition.

5. Such affidavit shall be filed no later than ninety days after the filing of the petition unless the court, for good cause shown, orders that such time be extended for a period of time not to exceed an additional ninety days.

6. If the plaintiff or his attorney fails to file such affidavit the court shall, upon motion of any party, dismiss the action against such moving party without prejudice.

7. Within one hundred eighty days after the filing of the petition, any defendant may file a motion to have the court examine in camera the aforesaid opinion and if the court determines that the opinion fails to meet the requirements of this section, then the court shall conduct a hearing within thirty days to determine whether there is probable cause to believe that one or more qualified and competent health care providers will testify that the plaintiff was injured due to medical negligence by a defendant. If the court finds that there is no such probable cause, the court shall dismiss the petition and hold the plaintiff responsible for the payment of the defendant's reasonable attorney fees and costs.

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(L. 1986 S.B. 663 § 8, A.L. 2005 H.B. 393)

CROSS REFERENCE:

Applicability of statute changes to cases filed after August 28, 2005, 538.305

(1991) Statute does not violate constitutional right to jury trial or right of access to courts or other constitutional protections when a judgment of dismissal is entered because plaintiff fails to file an affidavit stating he had a health care provider's opinion of merit. Statute's requirement that affidavit must be filed within ninety days of filing a medical malpractice suit is constitutional. Mahoney v. Doerhoff Surgical Service, 807 S.W.2d 503 (Mo.banc).

(2000) Strict liability is not applicable to health care providers. Budding v. SSM Healthcare System, 19 S.W.3d 678 (Mo.banc).

(2022) Bill amending section in 2005 did not violate the clear title or single subject requirements of the Missouri Constitution, and the section is not an affirmative defense that can be waived if not pleaded in an answer. Giudicy v. Mercy Hospitals East Communities, 645 S.W.3d 492 (Mo.banc).

Notes of Decisions

Cited in 118 cases (37 in the last 5 years), 1990–2026 · leading case: Wanda Mayes v. Saint Luke's Hosp. of Kansas City, (Consol. with)Wanda Mayes v. Saint Luke's Hosp. of Kansas City, 430 S.W.3d 260 (Mo. 2014).

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Wanda Mayes v. Saint Luke's Hosp. of Kansas City, (Consol. with)Wanda Mayes v. Saint Luke's Hosp. of Kansas City, 430 S.W.3d 260 (Mo. 2014). · cites it 111× “Section 538.225, RSMo 2000. It then was amended to require mandatory dismissal.”

Paul M. Lang & Allison M. Boyer v. Dr. Patrick Goldsworthy, 470 S.W.3d 748 (Mo. 2015). · cites it 96× “Plaintiffs argue that the affidavit requirement of the statute is unconstitutional because it arbitrarily bars their case from proceeding in violation of the “open courts” doctrine and the right to a jury trial.”

Hink v. Helfrich, 545 S.W.3d 335 (Mo. 2018). · cites it 56× “Laura Denvir Stith, Judge Appellant Marilyn Hink appeals the Scott County circuit court's judgment dismissing her medical malpractice case without prejudice for failure to file an "affidavit of merit" under section 538.225. 1 She argues section 538.”

Devitre v. Orthopedic Ctr. of Saint Louis, LLC, 349 S.W.3d 327 (Mo. 2011). · cites it 48× “, or of The Orthopedic Center of St. Louis, LLC, and the independent medical examination conducted by Dr.”

Mahoney v. Doerhoff Surgical Servs., Inc., 807 S.W.2d 503 (Mo. 1991). · cites it 46× “After the lapse of 90 days, the several defendants moved to dismiss the plaintiffs action for failure to comply with § 538.225, RSMo 1986. That section provides that no later than ninety days after the filing of a petition against a health care provider for damages for personal…”

State ex rel. Goldsworthy v. Kanatzar, 543 S.W.3d 582 (Mo. 2018). · cites it 22× “100, the plaintiffs filed a second action March 19, 2014, within one year of the nonsuit of the first action.”

White v. Tariq, 299 S.W.3d 1 (Mo. Ct. App. 2009). · cites it 44× “The trial court dismissed Plaintiffs’ action without prejudice on the grounds that Plaintiffs failed to timely file a health care affidavit as required by Section 538.225 RSMo (Cum. Supp.2005). Plaintiffs contend that the trial court erred when it applied the 2005 amended…”

Ferder v. Scott, 556 S.W.3d 100 (Mo. Ct. App. 2018). · cites it 68× “3d at 271 ; Section 538.225 RSMo (2000). Notably, in 2005, the legislature amended Section 538.”

Klotz v. St. Anthony's Med. Ctr., 311 S.W.3d 752 (Mo. 2010). · cites it 15× “Shapiro and MHG contend that the definition of "legally qualified" in § 538.225, RSMo Supp.2008, requires that the health care provider be licensed in the same profession to offer an affidavit certifying the merit of a case.”

Spradling v. SSM Health Care St. Louis, 313 S.W.3d 683 (Mo. 2010). · cites it 20× “At its inception, section 538.225, RSMo 1986, provided that a plaintiff filing an action against a health care provider for damages for personal injury must file a health care affidavit.”

J.K.M. v. Dempsey, 317 S.W.3d 621 (Mo. Ct. App. 2010). · cites it 29× “(“De *623 fendant”) based on Plaintiffs failure to timely file the health care affidavit required by section 538.225. 2 Although Plaintiff attempted to avoid characterizing his claims against Defendant as based on medical negligence, the factual averments set forth in Plaintiffs…”

Doe v. Quest Diagnostics, Inc., 395 S.W.3d 8 (Mo. 2013). · cites it 14× “Doe’s claims should never have been submitted to the jury because he did not file an affidavit of merit pursuant to section 538.225, RSMo. The purpose of the affidavit requirement of section 538.”

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— Mo. Rev. Stat. § 538.225(1) — 1 case

Baker v. Felker, 952 S.W.2d 743 (Mo. Ct. App. 1997).

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