Affidavit of Merit Deadline in Medical Malpractice Cases: 90 Days Means 90 Days

In Shreves v. Mercy-GoHealth, No. ED11300, the Missouri Court of Appeals, Eastern District, reaffirmed the strict statutory requirements surrounding affidavits of merit in medical malpractice cases—and made clear that both the affidavit itself and any request for an extension to file the affidavit of merit must be filed within 90 days of the filing of the petition.

Background

The plaintiff filed a medical negligence suit after passing out and falling from an exam table while left unattended at an urgent care facility. His initial lawsuit, filed in December 2022, was voluntarily dismissed in March 2023 after he failed to file the affidavit of merit required by § 538.225 RSMo.

The plaintiff refiled his medical negligence claim on March 26, 2024—again without an affidavit. When 90 days passed without an affidavit being filed, the defendants moved to dismiss the petition. Plaintiff then sought an extension of time within which to file the affidavit of merit. At that point, 135 days had elapsed since the plaintiff had refiled his petition.

The trial court denied the extension and dismissed the plaintiff’s claim without prejudice.

The Court’s Analysis

On appeal, the plaintiff argued that § 538.225 allows a party up to 180 days to file the required affidavit.  The Plaintiff based his argument on a reading of the statute that combined the initial 90-day deadline with a possible 90-day extension.  In rejecting this interpretation of § 538.225, the Eastern District held that the unambiguous language of the statute:

• Required the affidavit to be filed within 90 days of the filing of the petition,
• OR required a plaintiff seeking an extension of time to file the affidavit to file a motion requesting an extension within that same 90-day window.

Section 538.225.5 allows a court to extend the deadline for good cause, but only if the request for extension is made within the initial 90 days. While the trial court may grant an extension of an additional 90 days, the request for the extension cannot be filed late.

In support of its holding, the Court quoted the statutory language:

“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…” (§ 538.225.5, emphasis added)

The Court also cited § 538.225.6, which mandates dismissal without prejudice upon a party’s motion if the affidavit is not timely filed.

Finding no precedent to support the plaintiff’s argument—and no ambiguity in the statute—the Eastern District affirmed the trial court’s dismissal of the plaintiff’s petition.

Takeaway

This decision serves as a sharp reminder: in Missouri medical malpractice litigation, 90 days means 90 days. Plaintiffs must file either the affidavit of merit or a motion for extension within that time. Delaying until day 91—or later—forecloses both options.  The courts lack authority to consider an extension of time if the request for the extension is not filed within 90 days of the filing of the petition.  Period.  No exceptions.

Even experienced practitioners can misread procedural statutes. When in doubt, act early and preserve the record. Because in this context, missing the deadline isn’t just risky—it’s fatal to the case.