Section 13.23 Is a Medical Expert Required?

• Library: Sources of Proof (2014 Ed.)

B. (§13.23) Is a Medical Expert Required?

When physical or mental condition is at issue, an expert opinion may not only be useful—it may be required. As the Supreme Court of Missouri has noted, “in the great majority of malpractice cases a submissible case may only be made by expert medical testimony.” Haase v. Garfinkel, 418 S.W.2d 108, 113 (Mo. 1967). This is especially true on causation issues when it has been said that “the proof of causation is not within the realm of lay understanding nor—in the absence of expert opinion—is the finding of causation within the competency of the administrative tribunal.” Griggs v. A.B. Chance Co., 503 S.W.2d 697, 704–05 (Mo. App. W.D. 1973).

An expert opinion may be required before the filing of an action against a medical professional. Under § 538.225, RSMo Supp. 2013, in “any action against a health care provider for damages for personal injury or death” resulting from health care services, the plaintiff must, within 90 days of filing the lawsuit, file an affidavit stating that the plaintiff has obtained a legally qualified health care provider’s written opinion that the defendant was negligent and caused the plaintiff’s alleged damages.

The elements of the cause of action do not fix conclusively whether the § 538.225 affidavit is required. Instead, if a court determines that the relationship of the parties is that of health care provider and recipient and that the “true claim” relates only to the provision of health care services, the health care affidavit is mandatory. Jacobs v. Wolff, 829 S.W.2d 470, 472 (Mo. App. E.D. 1992); see also Vitale v. Sandow, 912 S.W.2d 121, 122 (Mo. App. W.D. 1995) (an affidavit was required in a patient’s libel action against doctors for sending letters to his employer and insurer stating that the plaintiff’s physical symptoms were a result of malingering); St. John’s Reg’l Health Ctr., Inc. v. Windler, 847 S.W.2d 168, 171 (Mo. App. S.D. 1993) (an affidavit was required in a false imprisonment claim against a doctor).

The courts have held that the legislature intended the term “personal injury” in § 538.225.1 to be applied in a broad sense to include all actions for injuries to the person, whether to the person’s rights or to the person’s body. Windler, 847 S.W.2d at 172 (damages for false imprisonment are damages for personal injury within the meaning of the statute); Vitale, 912 S.W.2d at 123 (damages for libel are for personal injury within the meaning of the statute, and the court...