Affidavit of Merit Not Required in Medical Negligence Lawsuit Alleging Breach of Confidentiality

A Missouri Appellate Court held that a patient suing a healthcare provider for improperly accessing confidential information was not required to file an affidavit of merit. In Illinois, an affidavit of merit under Illinois Code of Civil Procedures,735 ILCS 5/2-622, is required in filing a medical malpractice lawsuit as is the case in Missouri.

In the related case, J.J., a minor, received inpatient treatment at Poplar Bluff Regional Medical Center. A facility employee, who was not involved in J.J.’s treatment, allegedly accessed his medical records and revealed to her daughter, a former girlfriend of J.J., that he was receiving inpatient treatment.

J.J. was a student. Other students at J.J.’s school learned of this information, leading to harassment and bullying.

J.J. sued Poplar Bluff Regional Medical Center, alleging breach of fiduciary duty, breach of contract, negligence and other claims. The hospital moved to dismiss based on the plaintiff choosing not to file an affidavit of merit. The court originally dismissed the plaintiff’s claim.

Reversing, the Missouri Appellate Court noted that a plaintiff must submit an affidavit of merit when the alleged injury results from a healthcare provider’s rendering of or failure to render a service involving professional medical judgment. The purpose of the affidavit of merit, the court added, is to weed out meritless lawsuits.

In this case, the appellate court stated that the plaintiff’s claim against the defendants is for breach of duty of confidentiality – not medical negligence – and resolving this claim does not require a determination of whether the defendants’ medical judgment fell below the standard of care. Moreover, the court said that keeping medical records confidential in a healthcare setting is an administrative duty incidental to providing treatment.

The appellate court concluded that this does not involve a professional medical judgment. As a result, the appellate court reversed the dismissal by the lower court and remanded the case for further disposition.

The attorneys handling this case for J.J. were Maureen M. Brady, Lucy G. McShane and Richard L. Rollings Jr.

J.J. v. Poplar Bluff Regional Medical Center, 2013 WL 6219744 (Mo. Ct. App.).

Kreisman Law Offices has been handling medical malpractice lawsuits, wrongful death cases, misdiagnosis of cancer lawsuits and wrongful death lawsuits for individuals, families and loved ones who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 48 years in and around Chicago, Cook County and its surrounding areas, including Des Plaines, Skokie, Forest Park, Crestwood, Cicero, Wood Dale, Elk Grove Village, Glenview, Northfield, Deerfield, Buffalo Grove, Vernon Hills, Lake Zurich, Chicago (Rogers Park, Edgewater, Lincoln Square, Albany Park, Jefferson Park, Dunning, Logan Square, Lincoln Park, Belmont Cragin, Little Village, Lower West Side, Chinatown), Broadview, Mount Prospect, and Glencoe, Ill.

Robert D. Kreisman has been an active member of the Illinois and Missouri bars since 1976.