Missouri Medical Malpractice Laws

Medical malpractice claims can be incredibly complex. If you or a loved one has been a victim of medical malpractice, you have a specified time period in which you are able to bring a claim. If you fail to file a claim within that timeframe, it is quite possible that you will not be able to do so at any point. This page provides a brief overview of what you may expect if you are pursuing a medical malpractice claim in Missouri; however, the best course of action to take if you are considering doing so is to consult with an experienced medical malpractice attorney licensed in Missouri. An experienced attorney will be able to guide you through the specifics of the laws that are more finely tuned with the details of your medical malpractice claim.

Suing for Medical Malpractice in Missouri

A medical malpractice case may be brought by an injured patient against any licensed health care provider, including a medical doctor, nurse, physical therapist, and mental health care professional. The law in Missouri places a set time period for which a medical malpractice claim may be filed. If named as a defendant in a medical malpractice case, the law in Missouri allows the defense of pure comparative negligence to be used which allows a damage award to be reduced in proportion to the percentage of fault assigned by a court.

When it comes to medical malpractice claims, many cases settle out of court prior to the case advancing to the trial stage of litigation. However, if the case does advance to trial and you are successful in proving your case and receive an award of damages as a result, a portion of those damages will be capped depending upon the type of damages awarded.

How long do I have to file a medical malpractice case in Missouri?

The first step in bringing a claim of medical malpractice against a healthcare provider is making certain that you are permitted to do so. The law in Missouri mandates that an action for personal injury must be filed within two years from the date that the injury occurred. [1] This time limitation is known as the “statute of limitations.” The reason behind placing a time limitation on when you may file a medical malpractice claim is sound. A court is interested in credible evidence in order to establish a cause of action. As time passes, it is possible that the crucial evidence that would initially aid your case would become less compelling.

While the two-year window of time to file a medical malpractice claim is strictly followed, there is an exception to the rule known as the “discovery rule.”

It is not uncommon for an injury that occurred due to the negligence of a healthcare provider to be discovered almost immediately after occurring. In those situations, it is best to consult with an attorney and file a claim as soon as possible. However, situations do exist where the injury may not be discovered by the injured party for months, even years, after the act that caused the injury occurred. In order to prevent punishing the injured party for not discovering their injury, the lawmakers in Missouri created the discovery rule. The discovery rule freezes the two-year time limit and only begins to run once you either discover, or should have discovered, the injury that was caused by the medical malpractice. However, the time period to discover your injury is capped at 10 years.

Another exception to the statute of limitations exists if the injured party is a minor. The law in Missouri allows a minor who was under the age of 10 years old at the time the malpractice took place to file a medical malpractice lawsuit at any time prior to reaching the age of 12 years old.

In Missouri Medical Malpractice Cases, who is Responsible?

The law in Missouri permits a medical malpractice suit to be filed when an injury was caused by the malpractice, negligence, error or mistake related to health care. [2]

Those that can be held responsible due to being included in the definition of a “healthcare provider” include: physicians, hospitals, dentists, registered or licensed practical nurses, optometrists, podiatrists, pharmacists, chiropractors, professional physical therapists, mental health professionals, and any other entity providing health care services and all employees of any of the foregoing acting in the course and scope of their employment. [3]

When bringing a medical malpractice claim against any of the aforementioned, the burden of proof rests with you and you must prove:

(1) the degree of knowledge or skill possessed or the degree of care ordinarily exercised under the circumstances, at the time of the act complained of, by health care providers in the field or specialty in which the defendant is practicing;

(2) that the defendant either lacked this degree of knowledge or skill or failed to exercise this degree of care; and

(3) that as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care you suffered injuries that would not otherwise have been incurred.

What if I am partially to blame? Can I Still Recover Money for Missouri Medical Malpractice?

Missouri, along with 12 other states (Arizona, Alaska, California, Florida, Kentucky, Louisiana, Mississippi, New Mexico, New York, Rhode Island, South Dakota, and Washington) recognizes the doctrine of pure comparative fault. Under the doctrine of pure comparative fault any award of damages you are awarded from a court are reduced in proportion to your contribution to your own injury. This doctrine is extremely friendly to you in that you are able to recover for damages even if you are found to have been 99% at fault for your injury. [4]

For example, imagine if a patient, without permission, gets out of their hospital bed and begins running down the hospital’s hallways, ignoring posted signs warning of the dangers of running in the hospital and the patient ends up slipping and breaking their leg. If a court finds that the hospital is 1% at fault for failing to properly supervise the patient, the patient will still be able to recover a monetary award that is reduced in proportion to their 99% contribution to their injury.

An argument against the adoption of pure comparative fault is that it is contrary to the nature and purpose of the legal system to allow a plaintiff who has substantially contributed to their own injury to recover damages for any portion of their loss. As a result, the majority of states have adopted a modified system which allows for only a partial apportionment of fault. Usually, the percentage of fault is either capped at 51% or 50%. If the plaintiff contributed to their injury in a way that surpassed the allowed threshold, they will be barred from recovering for their injury.

Are there medical malpractice recovery caps in Missouri?

If you are ultimately successful in your medical malpractice claim, you will be awarded damages in accordance with the doctrine of pure comparative fault. The term “damages” is synonymous with a monetary award which is used to compensate the plaintiff for the injuries they sustained as a result of the plaintiff’s negligence. There are different types of damage awards you may receive:

Special Damages compensate you for any financial losses you incurred as a result of your injury. This can include financial losses like:

• Medical bills
• Prescription fees
• Physical therapy costs
• Wages lost from an inability to work
• Loss of future wages

General Damages compensate you for occurrences that are hard to properly value. For example:

• Pain and suffering
• Loss of consortium
• Loss of enjoyment of life

Punitive Damages, are different from special and general damages in that they are intended to punish the defendant rather than compensate the plaintiff. In Missouri, punitive damages may be awarded by the court only when you prove that the defendant demonstrated willful, wanton or malicious misconduct with respect to his actions which were found to have injured or caused or contributed to cause your injury. [5]

The state of Missouri has imposed certain caps on damages in medical malpractice claims.

General, or non-economic, damages are limited to $500,000 but that amount is monitored and changed on January 1st each year where an increase of one and seven-tenths percent is made. [6]

Expert witness reporting and testimony

The testimony given by an expert witness is invaluable to you if you are bringing a claim of medical malpractice. It is the expert that will be able to establish that the defendant either lacked or failed to exercise the requisite degree of knowledge or skill held by healthcare providers in their field and that as a proximate result of the lack of knowledge or skill or the failure to exercise this degree of care, you suffered injuries that would not otherwise have been incurred.

The state of Missouri has seen numerous medical malpractice claims be filed against healthcare professionals despite the fact that the claims were frivolous and lacked merit. Those cases tied up the court system and caused many skilled physicians to lose their practices due to insurance increases. To help remedy this problem, Missouri has implemented a procedure requiring you to file an affidavit, known as a Certificate of Merit, which accompanies your initial Complaint when filing your medical malpractice lawsuit with the court. [7] The affidavit must state that you or your attorney obtained the written opinion of a legally qualified health care provider and that the health care provider agrees with you in 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 you claimed in your complaint.

To qualify as an expert capable of completing such an affidavit, the law in Missouri requires potential expert witnesses be a health care provider licensed in either the state of Missouri 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. [8]

Are some parties immune from medical negligence cases?

The state of Missouri is protected from legal actions by the doctrine of sovereign immunity. [9] This means that you are not permitted to bring a medical malpractice claim against the state. However, the immunity provided to the state does cover medical personnel like doctors and nurses who are employed by state-owned medical facilities. Therefore, if you were injured as a result of medical malpractice within a state-owned hospital, you are not permitted to sue the hospital facility itself but are permitted to bring suit against the physicians or nurses that caused or contributed to your injury.

Settling medical malpractice cases in Missouri

The law in Missouri does not require mandatory arbitration, mediation, or the submission of your medical malpractice case to a screening panel as a form of alternative dispute resolution prior to the claim reaching the trial stage of litigation. However, if both parties wish, they may elect to have their dispute heard via arbitration, early neutral evaluation; mediation; or a mini trial. [10]

Litigating medical negligence cases in Missouri

A claim for medical malpractice in Missouri begins with the filing of a complaint. The complaint must specifically describe the alleged malpractice that occurred and also designate expert witnesses who will testify on your behalf.

Initiating the Case

If the parties to a medical malpractice claim do not wish to engage in a permissible form of alternative dispute resolution, the claim will proceed to civil court. In Missouri, a civil action begins by filing a complaint with the court. A complaint should include:

• The name of the court
• The plaintiff’s name, address and telephone number
• Full name of all named defendants
• The jurisdiction
• Statement of the claim and the reason it is being brought before the court
• A demand of the relief being sought

Upon the filing of the complaint a summons must also be issued. A summons informs all named defendants that a lawsuit is being filed against them. The clerk of the court will deliver the summons to either a sheriff or another person appointed to perform service.

Named defendants must file an answer within thirty (30) days after the service of the summons and complaint. [11]

Preparing for Litigation

After the complaint and answer have been filed in the appropriate court, the parties may begin the discovery process. Discovery is a procedure designed to allow disclosure between both sides of a lawsuit which allows both sides to know what to expect at trial.

In a medical malpractice case, medical records and doctor’s notes are usually items that will be requested for disclosure.

Each side may obtain discovery by:

• Deposition
• Written interrogatories
• Production of documents or
• Requests for admission

A deposition is a fact-finding tool where the opposing side is permitted to ask questions of the witness being deposed who is under oath. Depositions are usually taken before an officer who is authorized to administer oaths or before a person appointed by the court where the case is scheduled to go to trial. The deposition does not usually take place in a courtroom. Instead, the questions are asked in an attorney’s office where attorneys are present in order to help advise their client on how to answer certain questions as well as to make objections if necessary. Through the question and answer session, opposing counsel will try to find out what facts the opposing party believes to be true and what facts they may be exaggerating. Most witnesses may be deposed, including:

• Independent expert witnesses
• Treating physicians
• Any party named in the case

Written interrogatories are written questions sent to the opposing side that request answers which will be used to establish the facts that will be presented once the case goes to trial.

Production of documents is a request made to the opposing side whereby tangible documents are sought. In a medical malpractice case, an example of a request for production of documents would be a request to view the medical records of the claimant.

Request for admission is a set of statements drafted by one side and sent to the other where the receiver must answer in the affirmative or the negative. In a medical malpractice case, an example of a request for admission would be a statement like, “the defense has no evidence to support a basis that the claimant caused their own injuries.” If the defense answers in the negative, the claimant would know that the defense is intending to proffer some type of evidence in an attempt to prove that they were at least partially to blame for their own injury.

In a medical malpractice case, it is possible that the person bringing the claim will need to be medically evaluated in order to corroborate that the injury being complained of does in fact exist.

Pretrial Litigation

Litigation can be long, arduous and expensive. For these reasons, it is not uncommon for a case to settle prior to reaching the trial stage of litigation. In fact, settlement is often encouraged and both sides are able to work on a potential deal up until the date of trial. Early neutral evaluation is a popular form of pretrial litigation whereby both sides are brought together to receive an early assessment of the facts by a neutral third party. This type of evaluation can spark settlement negotiations and expedite a resolution.

Trial

During a trial all admissible evidence will be presented to the ‘trier of fact’ who is a person or group of people who hear testimony and review evidence in order to issue a ruling in favor of one party or another. There are two potential triers of fact in a personal injury case in the state of Missouri: a judge or a jury. In Missouri, a jury consists of twelve people unless all parties agree on a lesser number, but not less than eight. [12]

To choose a jury, a procedure known as “voir dire” is conducted whereby attorneys ask potential jurors questions in order to determine what biases the panel members may have in favor or against the cast being brought before the court. Once this process is completed, both sides will decide what parties they would like to remove from juror consideration. Once each side finishes announcing the parties they wish to have removed, the jury is impaneled.

In Missouri, a person is considered to be qualified to be a juror if they are:

• a citizen of the United States;
• a resident of Missouri
• at least 21 years of age
• of sound mind;
• in possession of the person’s natural faculties
• able to read or speak the English language

After the jury selection is completed, opening statements will begin. During opening statements, both attorneys are permitted to make statements that explain their client’s position and may also outline the evidence they expect to present during the trial that will support their claims.

From there, the plaintiff will begin to argue their case. The plaintiff will call witnesses at this time and each witness will be questioned by the plaintiff’s attorney and then likely cross-examined by the

opposing side’s attorney. After all the plaintiff’s witnesses have been called and evidence has been presented, the plaintiff will rest their case.

Once the plaintiff finishes the presentation of their case, the defense will begin to present their evidence. The defense will present the physician’s side of the case and attempt to show why negligence was not involved in creating the patient’s injury.

Once both sides have argued their cases, closing arguments will take place. During closing arguments, each side’s attorney will explain to the jury what they believe the evidence proves.

Finally, jury instructions are then be given by the judge to the jury and the jury is then free to deliberate and come back with a finding.

Appeal

Many times the losing side in a medical malpractice case will opt to appeal a decision from the lower court. An appeal allows a higher court to review the actions of a lower court in order to determine if the law was appropriately applied.

A notice of appeal must be filed within 10 days after the entry of the final judgment from the lower court.

How to find the best Missouri Medical Malpractice Lawyer for your case

Initiating any legal proceeding can be daunting and overwhelming, especially if you or a loved one has had the unfortunate experience of being injured as a result of medical malpractice. It is likely that you would rather focus on healing and seeking the proper medical treatment than worry about contacting your healthcare provider’s attorney or looking for experts that can support your claim. This is why it is important to find legal representation that can take your mind off of the legalese so that you can focus on getting yourself better.

One of the main motivating factors in bringing a medical malpractice lawsuit against a healthcare provider that caused your injury is to receive proper compensation for the pain, suffering and losses you have likely endured. For this reason, it is of utmost importance that you find competent, diligent and personable counsel to represent your interests.

When looking to hire legal representation, it is important to remember that the attorney will be working for you – not the other way around. Take your time when looking for legal counsel and do not hesitate to interview more than one law firm. Looking at a variety of firms will give you a good sense of what each firm brings to the table and help you decide which fit is best for you.

When looking for legal representation, experience is the key. You will want to hire an attorney or law firm that is well versed in in medical malpractice cases. Do not be afraid to ask an attorney or law firm their level of experience. It may also be wise to ask if they have ever litigated a case similar to yours and whether or not they were successful. If they have had experience with cases with facts similar to yours, they may be able to give insight into how long the case may last and what your expected damages may be.

You may also want to get a feel for if you actually like the attorney or law firm that you are interviewing. Communication between attorneys and clients is incredibly important. Is this attorney someone you will enjoy communicating with? Further, you should also ask your potential attorney or firm how they communicate with their clients. People communicate in different ways which can lead to frustration if the methods used between the parties do not mesh. Your attorney should adapt their communication methods to fit your needs.

Some notable medical malpractice law decisions from Missouri

These cases represent awards to plaintiffs in medical malpractice cases in Missouri. These results are in no way a guarantee that subsequent, similar, cases will see the same results.

Stewart v. Partamian and Phoenix Urology of St. Joseph, Inc.

The defendant diagnosed the plaintiff with a prostate abscess and treated him with antibiotics. On another occasion, a different doctor examined the plaintiff and determined that the plaintiff’s prostate abscess should be drained, but instead continued the plaintiff on the already established antibiotic treatment.

Eventually, the plaintiff’s prostate abscess ruptured and the original doctor was forced to perform surgery. The infection spread and caused the plaintiff to be in a coma for 28 days during which he was on a mechanical ventilator to support his breathing.

A lawsuit was filed on the basis that the defendants negligently failed to timely drain the abscess which caused the abscess to rupture. The plaintiff further claimed that the defendant’s negligence caused his injuries.

A jury awarded the plaintiff $401,726.77 for past economic damages, $1.5 million for past non-economic damages and $2,398,273.23 for future non-economic damages for a total verdict of $4.3 million.

The case was appealed on the basis that the jury’s verdict was excessive because it was a result of passion and prejudice, exceeded the amount requested by the plaintiff, and exceeded fair and reasonable compensation for his injuries.

On appeal, the court upheld the damage award given the plaintiff’s relatively young age, the extent of his injuries, the persistent pain, and the negative effects on multiple aspects of his life.

Koon v. Walden

The plaintiff, Brian Koon, went to his primary care physician complaining of lower back pain. The plaintiff’s doctor immediately began prescribing opioids, highly addictive narcotic pain medications, which are commonly used to treat moderate to severe pain that may not respond well to other pain medications.

The doctor continued to prescribe higher doses of opioids for four years even though the plaintiff’s back pain did not improve as a result of taking the medication. At one point, the plaintiff was taking multiple types of opioids, including Vicodin and OxyContin. During the four-year period, the plaintiff was prescribed 37,000 pain pills, with an average daily dose that rose from 49 mg to 1555 mg.

The cumulative effect of the pain pills resulted in the man’s inability to continue his job as a mechanical maintenance worker, estrangement from his wife and daughter, and severe depression to the point that he contemplated taking his own life.

The plaintiff, along with his wife, filed a medical malpractice lawsuit against his primary care doctor as well as the hospital, on the basis that the doctor and the hospital were negligent in prescribing a massive quantity of highly addictive pain medications for back pain.

At trial, the defendants argued that while opioid prescriptions of more than 100 mg per day render a patient at risk for serious side effects and addictive behaviors, the plaintiff was ultimately responsible for his addiction and the side effects that accompanied the pain pills.

The plaintiff provided the testimony of expert physicians that said that many primary care physicians are under the misperception that harmful reactions from opioid overdoses can be avoided by slowly adjusting the dose over time and that the belief is incorrect and has led to an epidemic of dangerously high doses of opioids being prescribed.

The jury agreed with the plaintiff and found that the doctor and the hospital were guilty of medical malpractice in the negligent administration of massive doses of opioids. An award of $17.6 million was issued which will be reduced in proportion to the amount of the apportioned fault assigned to the plaintiff.

Footnotes

[1] Mo. Ann. Stat. § 516.105

[2] Mo. Ann. Stat. § 516.105.1

[3] Mo. Ann. Stat. § 516.105.1

[4] Mo. Ann. Stat. § 537.765

[5] Mo. Ann. Stat. § 538.210

[6] Mo. Ann. Stat. § 538.210

[7] Mo. Ann. Stat. § 538.225

[8] Mo. Ann. Stat. § 538.225

[9] Mo. Ann. Stat. § 537.600

[10] Mo. Sup. CT. R. 17

[11] Missouri Rules of Civil Procedure Rule 55.25

[12] Mo. Ann. Stat. § 494.490