Missouri Statute | Act | Code |Statutory Actions And Torts| US Code - US Statute | Chapter 538 Tort Actions Based On Improper Health Care

As used in sections 538.205 to 538.230, the following terms
shall mean:

(1) "Economic damages", damages arising from pecuniary harm including,
without limitation, medical damages, and those damages arising from lost
wages and lost earning capacity;

(2) "Equitable share", the share of a person or entity in an obligation
that is the same percentage of the total obligation as the person's or
entity's allocated share of the total fault, as found by the trier of
fact;

(3) "Future damages", damages that the trier of fact finds will accrue
after the damages findings are made;

(4) "Health care provider", any physician, hospital, health maintenance
organization, ambulatory surgical center, long-term care facility
including those licensed under chapter 198, RSMo, dentist, registered or
licensed practical nurse, optometrist, podiatrist, pharmacist,
chiropractor, professional physical therapist, psychologist,
physician-in-training, and any other person or entity that provides
health care services under the authority of a license or certificate;

(5) "Health care services", any services that a health care provider
renders to a patient in the ordinary course of the health care provider's
profession or, if the health care provider is an institution, in the
ordinary course of furthering the purposes for which the institution is
organized. Professional services shall include, but are not limited to,
transfer to a patient of goods or services incidental or pursuant to the
practice of the health care provider's profession or in furtherance of
the purposes for which an institutional health care provider is organized;

(6) "Medical damages", damages arising from reasonable expenses for
necessary drugs, therapy, and medical, surgical, nursing, x-ray, dental,
custodial and other health and rehabilitative services;

(7) "Noneconomic damages", damages arising from nonpecuniary harm
including, without limitation, pain, suffering, mental anguish,
inconvenience, physical impairment, disfigurement, loss of capacity to
enjoy life, and loss of consortium but shall not include punitive damages;

(8) "Past damages", damages that have accrued when the damages findings
are made;

(9) "Physician employee", any person or entity who works for hospitals
for a salary or under contract and who is covered by a policy of
insurance or self-insurance by a hospital for acts performed at the
direction or under control of the hospital;

(10) "Punitive damages", damages intended to punish or deter willful,
wanton or malicious misconduct, including exemplary damages and damages
for aggravating circumstances;

(11) "Self-insurance", a formal or informal plan of self-insurance or no
insurance of any kind. (L. 1986 S.B. 663 § 4, A.L. 1997 H.B. 335, A.L.
2005 H.B. 393)

CROSS REFERENCE: Applicability of statute changes to cases filed after
August 28, 2005, RSMo 538.305

(1994) United States fits within the definition of health care provider
for purposes of statute as entity that provides health care services
under the authority of a license. License is Congressional legislation
which authorizes the operation of Veterans Administration hospitals.
Romero v. United States, 865 F.Supp. 585 (E.D. Mo.).

1. In any action against a health care provider for damages for
personal injury or death arising out of the rendering of or the failure
to render health care services, no plaintiff shall recover more than
three hundred fifty thousand dollars for noneconomic damages irrespective
of the number of defendants.

2. (1) Such limitation shall also apply to any individual or entity, or
their employees or agents that provide, refer, coordinate, consult upon,
or arrange for the delivery of health care services to the plaintiff; and

(2) Who is a defendant in a lawsuit brought against a health care
provider under this chapter, or who is a defendant in any lawsuit that
arises out of the rendering of or the failure to render health care
services.

(3) No individual or entity whose liability is limited by the provisions
of this chapter shall be liable to any plaintiff based on the actions or
omissions of any other entity or person who is not an employee of such
individual or entity whose liability is limited by the provisions of this
chapter.

Such limitation shall apply to all claims for contribution.

3. In any action against a health care provider for damages for personal
injury or death arising out of the rendering of or the failure to render
health care services, where the trier of fact is a jury, such jury shall
not be instructed by the court with respect to the limitation on an award
of noneconomic damages, nor shall counsel for any party or any person
providing testimony during such proceeding in any way inform the jury or
potential jurors of such limitation.

4. For purposes of sections 538.205 to 538.230, any spouse claiming
damages for loss of consortium of their spouse shall be considered to be
the same plaintiff as their spouse.

5. Any provision of law or court rule to the contrary notwithstanding, an
award of punitive damages against a health care provider governed by the
provisions of sections 538.205 to 538.230 shall be made only upon a
showing by a plaintiff that the health care provider demonstrated
willful, wanton or malicious misconduct with respect to his actions which
are found to have injured or caused or contributed to cause the damages
claimed in the petition.

6. For purposes of sections 538.205 to 538.230, all individuals and
entities asserting a claim for a wrongful death under section 537.080,
RSMo, shall be considered to be one plaintiff. (L. 1986 S.B. 663 § 5,
A.L. 2005 H.B. 393)

CROSS REFERENCES: Applicability of statute changes to cases filed after
August 28, 2005, RSMo 538.305 Time limitation to bring malpractice
actions, RSMo 516.105

(1992) Statute does not violate the equal protection, due process, nor
does it deny plaintiffs a lawful remedy for a wrong done; it simply
redefines the substantive law by limiting the amount of noneconomic
damages plaintiffs can recover. Because statute is not applied until
after the jury has completed its constitutional task, it does not
infringe upon the right to a jury trial. Adams v. The Children's Mercy
Hospital, 832 S.W.2d 898 (Mo.banc).

(1992) Where question facing court is whether there are one or two caps
on noneconomic damages, it depends on whether there are one or two
defendants which turns on whether the doctor is insured as an employee of
the hospital's malpractice insurance policy. If the doctor is insured as
an employee under the hospital's policy, then there is one cap. Vincent
v. Johnson, 833 S.W.2d 859 (Mo.banc).

(2004) In wrongful death action, patient's surviving husband and two
children are considered one "plaintiff" for purposes of applying
statutory cap for noneconomic damages. Cook v. Newman, 142 S.W.3d 880
(Mo.App. W.D.).

1. In any action against a health care provider for damages for
personal injury or death arising out of the rendering of or the failure
to render health care services, any damages found shall be itemized by
the trier of fact as follows:

(1) Past economic damages;

(2) Past noneconomic damages;

(3) Future medical damages;

(4) Future economic damages, excluding future medical damages; and

(5) Future noneconomic damages.

2. All future damages which are itemized as required by subsection 1 of
this section shall be expressed by the trier of fact at present value.

3. Any award of noneconomic damages in excess of the limit provided
herein shall be reduced by the court to the maximum amount. (L. 1986 S.B.
663 § 6)

Effective 2-3-86

1. In any action against a health care provider for damages for
personal injury or death arising out of the rendering of or the failure
to render health care services, past damages shall be payable in a lump
sum.

2. At the request of any party to such action made prior to the entry of
judgment, the court shall include in the judgment a requirement that
future damages be paid in whole or in part in periodic or installment
payments if the total award of damages in the action exceeds one hundred
thousand dollars. Any judgment ordering such periodic or installment
payments shall specify a future medical periodic payment schedule, which
shall include the recipient, the amount of each payment, the interval
between payments, and the number of payments. The duration of the future
medical payment schedule shall be for a period of time equal to the life
expectancy of the person to whom such services were rendered, as
determined by the court, based solely on the evidence of such life
expectancy presented by the plaintiff at trial. The amount of each of the
future medical periodic payments shall be determined by dividing the
total amount of future medical damages by the number of future medical
periodic payments. The court shall apply interest on such future periodic
payments at a per annum interest rate no greater than the coupon issue
yield equivalent, as determined by the Federal Reserve Board, of the
average accepted auction price for the last auction of fifty-two-week
United States Treasury bills settled immediately prior to the date of the
judgment. The judgment shall state the applicable interest rate. The
parties shall be afforded the opportunity to agree on the manner of
payment of future damages, including the rate of interest, if any, to be
applied, subject to court approval. However, in the event the parties
cannot agree, the unresolved issues shall be submitted to the court for
resolution, either with or without a post-trial evidentiary hearing which
may be called at the request of any party or the court. If a defendant
makes the request for payment pursuant to this section, such request
shall be binding only as to such defendant and shall not apply to or bind
any other defendant.

3. As a condition to authorizing periodic payments of future damages, the
court may require a judgment debtor who is not adequately insured to post
security or purchase an annuity adequate to assure full payment of such
damages awarded by the judgment. Upon termination of periodic payments of
future damages, the court shall order the return of this security or so
much as remains to the judgment debtor.

4. If a plaintiff and his attorney have agreed that attorney's fees shall
be paid from the award, as part of a contingent fee arrangement, it shall
be presumed that the fee will be paid at the time the judgment becomes
final. If the attorney elects to receive part or all of such fees in
periodic or installment payments from future damages, the method of
payment and all incidents thereto shall be a matter between such attorney
and the plaintiff and not subject to the terms of the payment of future
damages, whether agreed to by the parties or determined by the court.

5. Upon the death of a judgment creditor, the right to receive payments
of future damages, other than future medical damages, being paid by
installments or periodic payments will pass in accordance with the
Missouri probate code unless otherwise transferred or alienated prior to
death. Payment of future medical damages will continue to the estate of
the judgment creditor only for as long as necessary to enable the estate
to satisfy medical expenses of the judgment creditor that were due and
owing at the time of death, which resulted directly from the injury for
which damages were awarded, and do not exceed the dollar amount of the
total payments for such future medical damages outstanding at the time of
death.

6. Nothing in this section shall prevent the parties from contracting and
agreeing to settle and resolve the claim for future damages. If such an
agreement is reached by the parties, the future periodic payment schedule
shall not apply. (L. 1986 S.B. 663 § 7, A.L. 2005 H.B. 393)

CROSS REFERENCE: Applicability of statute changes to cases filed after
August 28, 2005, RSMo 538.305

(1992) Statute does not violate the equal protection nor does it violate
due process. Statute is rationally related to the general goal of
preserving adequate, affordable health care for all Missourians by
permitting defendants to satisfy judgments for future damages in periodic
or installment payments. Adams v. The Children's Mercy Hospital, 832
S.W.2d 898 (Mo.banc).

(1992) Medical malpractice cases are exempted from provisions of section
408.040, RSMo, which establish post-judgment interest on damages at nine
percent. Section gives the circuit court, in the absence of a
court-approved agreement between the parties, discretion in establishing
the plan for future payments. Vincent v. Johnson, 833 S.W.2d 859
(Mo.banc).

(1993) Where medical malpractice suit was brought by patient and her
spouse, provision of statute regarding future payments if total award of
damages in action exceeds one hundred thousand dollars applies to each
plaintiff's award separately; contingent attorney's fees are payable at
time of judgment together with all past damages; statute provision
permitting payment plan for future damages does not require payments be
made over patient's entire life expectancy; and patient may accept an
annuity but is not required to accept an annuity as satisfaction of
judgment. Roesch v. Ryan, 841 F.Supp. 288 (E.D.).

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. (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, RSMo 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).

(1993) Where psychiatric hospital sued former patient for unpaid bills,
and patient counterclaimed for false imprisonment, statute requires
health care affidavit before bringing action against health care provider
for damages for personal injury. Damages for false imprisonment are
damages for personal injury within meaning of statute. St. John's
Regional Health Center, Inc. v. Windler, 847 S.W.2d 168 (Mo. App. S.D.).

(1995) Damages for libel are damages for personal injury within the
meaning of this section. Vitale v. Sandow, 912 S.W.2d 121 (Mo.App.W.D.).

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

Any physician licensed under chapter 334, RSMo, who provides
medical treatment to a patient at a city or county health department
organized under chapter 192, RSMo, or chapter 205, RSMo, a city health
department operating under a city charter, a combined city-county health
department, or a nonprofit community health center or other nonprofit
entity that solely provides free health care services and is qualified as
exempt from federal taxation under Section 501(c)(3) of the Internal
Revenue Code of 1986, as amended, shall not be liable for any civil
damages for acts or omissions unless the damages were occasioned by gross
negligence or by willful or wanton acts or omissions by such physician in
rendering such treatment or unless the physician maintained, at the time
of treatment, liability insurance for such treatment, provided that such
treatment:

(1) Shall not include the performance of an abortion; and

(2) Is certified in advance of the treatment as being rendered free of
charge to the patient, with no compensation from any party or third-
party provider, or any attempt to obtain compensation from any
third-party provider.

For purposes of this section, a physician covered under the state legal
expense fund under section 105.711, RSMo, shall not be construed as
maintaining liability insurance coverage under this section. (L. 2005
H.B. 393)

CROSS REFERENCE: Applicability of statute changes to cases filed after
August 28, 2005, RSMo 538.305

1. The portion of statements, writings, or benevolent gestures
expressing sympathy or a general sense of benevolence relating to the
pain, suffering, or death of a person and made to that person or to the
family of that person shall be inadmissible as evidence of an admission
of liability in a civil action. However, nothing in this section shall
prohibit admission of a statement of fault.

2. For the purposes of this section, the following terms mean:

(1) "Benevolent gestures", actions which convey a sense of compassion or
commiseration emanating from humane impulses;

(2) "Family", the spouse, parent, grandparent, stepmother, stepfather,
child, grandchild, brother, sister, half brother, half sister, adopted
children of a parent, or spouse's parents of an injured party. (L. 2005
H.B. 393)

CROSS REFERENCE: Applicability of statute changes to cases filed after
August 28, 2005, RSMo 538.305

In any action against a health care provider for damages for
personal injury or death arising out of the rendering of or the failure
to render health care services, for purposes of determining venue under
section 508.010, RSMo, the plaintiff shall be considered injured by the
health care provider only in the county where the plaintiff first
received treatment by a defendant for a medical condition at issue in the
case. (L. 2005 H.B. 393)

CROSS REFERENCE: Applicability of statute changes to cases filed after
August 28, 2005, RSMo 538.305

The provisions of sections 538.205 to 538.230 shall apply only
to causes of actions arising on or after February 3, 1986. (L. 1986 S.B.
663 § 11)

The provisions of section 260.552, RSMo, sections 537.068 and
537.117, and 537.760 to 537.765, RSMo, and subsections 2 and 3 of section
408.040, RSMo, shall not apply to actions under sections 538.205 to
538.230. (L. 1987 H.B. 700 § 44, A.L. 1988 H.B. 1701 merged with S.B.
425, A.L. 2005 H.B. 393)

CROSS REFERENCE: Applicability of statute changes to cases filed after
August 28, 2005, RSMo 538.305

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

The provisions of this act*, except for section 512.099, RSMo,
shall apply to all causes of action filed after August 28, 2005. (L. 2005
H.B. 393 § 2)

*"This act" (H.B. 393, 2005) contained numerous sections. Consult
Disposition of Sections table for a definitive listing.

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