Missouri Medical Malpractice Summary
Statutes of Limitations
In Missouri, any medical malpractice action must be brought within two years from the date of the occurrence. Mo. Ann. Stat. § 516.105 (West Supp. 1998). However, if the claim involves a foreign object, the claimant is allowed two years from the date of discovering the alleged negligence to bring an action, but in no case shall an action for medical malpractice be brought more than ten years from the date of the alleged act. Id. The portion of the statute providing that a minor under the age of ten has until his twelfth birthday to bring his cause of action and providing no protection for minors over twelve has been held constitutionally invalid. Strahler v. St. Luke’s Hospital, 706 S.W.2d 7 (Mo. 1986).
An action for wrongful death must be brought within three years from the decedent’s death. Mo. Ann. Stat. § 537.100 (West 1988). An action for wrongful death premised on medical malpractice is governed by the three-year wrongful death limitations period and not the two-year medical malpractice limitations period. Caldwell v. Lester E. Cox Medical Centers-South, Inc., 943 S.W.2d 5 (Mo. Ct. App. 1997).
Contributory or Comparative Negligence
In 1983, the Supreme Court of Missouri adopted the pure form of comparative negligence. Gustafson v. Benda, 661 S.W.2d 11 (Mo. 1983). This doctrine is now incorporated in Mo. Ann. Stat. § 537.765 (West 1988), which provides that the contributory fault of the claimant does not bar recovery, but diminishes the amount recoverable as compensatory damages in proportion to the claimant’s degree of fault.
Joint and Several Liability
In those medical malpractice actions in which fault is apportioned, the court will enter judgment against each liable party on the basis of the rules of joint and several liability. Mo. Ann. Stat. § 538.230 (West 1988). However, any defendant against whom an award of damages is made will be jointly and severally liable only with those defendants whose apportioned percentage of the fault is equal to or less than his own. Id.
Joint tortfeasors (subject to the limitation discussed under Joint and Several Tortfeasors) have a right to contribution. Mo. Ann. Stat. § 537.060 (West 1988). This may be exercised in the underlying action by way of a cross-claim or a third- party complaint, or in a separate action. Safeway Stores, Inc. v. City of Raytown, 633 S.W.2d 727 (Mo. 1982).
A federal court of appeals interpreting Missouri law has held that a patient’s belief that an emergency room physician was an employee of the hospital was insufficient to create an ostensible or apparent agency and subject the hospital to vicarious liability in a medical malpractice action. Porter v. Sisters of St. Mary, 756 F.2d 669 (8th Cir. 1985). However, the court set forth the following factors that are relevant to the determination of whether an ostensible agency relationship exists: whether the physician directly received remuneration from the hospital; whether the physician directly bills the patients himself; whether the physician has an office at the hospital; whether there is a distinction in clothing or uniforms between medical staff physicians and employed physicians; and whether the hospital controls, directs, and supervises the physician’s treatment of patients.
One Missouri case has suggested that Porter may be valid. Gordon v. St. Mary’s Hospital, 769 S.W.2d 151 (Mo. Ct. App. 1989). However, a subsequent case held that the only circumstance in which a hospital would be vicariously liable for the acts of independent contractors in the emergency room would be a non-delegable duty imposed either because some regulation says so or because the operation of an emergency room is an “inherently dangerous activity.” The court decided neither applied in the case before it. Kelly v. St. Luke’s Hospital, 826 S.W.2d 391 (Mo. Ct. App. 1992). It is therefore uncertain under what circumstances a hospital may be liable for the acts of physicians who are not employees.
In any action for medical malpractice, the claimant must file with the court an affidavit stating that the claimant or his attorney has obtained a legally qualified health care provider’s opinion that the defendant failed to use reasonable care under the circumstances and that the failure to use reasonable care directly caused or contributed to the claimant’s damages. This must be done no later than 90 days after the action was filed, unless the court finds good cause for the delay. Mo. Ann. Stat. § 538.225 (West 1988).
In any medical malpractice action, a claimant’s recovery of non-economic damages from any one defendant is limited by statute. Mo. Ann. Stat. § 538.210 (West 1988). The limitation amount is adjusted on January 1 of each year in accordance with a standard index of inflation. Id. For 1997, the cap was approximately $500,000 from any one defendant. The cap is calculated annually by the Director of the Division of Insurance and published in the Missouri Register. Id. The damage cap, together with other tort reform measures, has been held to be constitutional. Adams v. Children’s Mercy Hospital, 832 S.W.2d 898 (Mo.), cert. denied, 506 U.S. 991 (1992).
Statutory Cap on Attorneys’ Fees
Missouri does not place a limit on the amount of compensation an attorney may receive for services rendered in a medical malpractice action. Mo. Ann. Stat. § 484.130 (West 1987).
In any action for medical malpractice, past damages are payable in a lump sum. Mo. Ann. Stat. § 538.220 (West 1988). Upon the request of either party any time prior to judgment, the court will require the periodic payment of future damages if the total exceeds $100,000. Id. If the claimant dies prior to the completion of the future damages payments, then the right to receive the remaining payments (other than future medical damages) passes to the claimant’s estate. Id. The statute is constitutional. Adams v. Children’s Mercy Hospital, 832 S.W.2d 898 (Mo.), cert. denied, 506 U.S. 991 (1992).
Collateral Source Rule
Missouri adheres to the common law collateral source rule whereby a defendant is not entitled to a reduction in the claimant’s damages by proving the claimant has received or will receive compensation for the loss from a source independent of the defendant. Iseminger v. Holden, 544 S.W.2d 550 (Mo. 1976). However, a defendant may introduce evidence of the availability of free educational services and therapies through public special education programs in mitigation of damages. Washington v. Barnes Hospital, 897 S.W.2d 611, rehearing en banc denied, 897 S.W.2d 611 (Mo. 1995).
A medical malpractice claimant is entitled to an award of pre-judgment interest when the amount of judgment exceeds the claimant’s rejected demand. Mo. Ann. Stat. § 408.040 (West 1990). Pre-judgment interest is calculated at nine percent from the date the demand was rejected or from 60 days after the demand was made, whichever is earlier. Id.
Patient Compensation Funds and Physician Insurance
Missouri does not have a patient compensation fund. As of January 1, 1987, any physician on the medical staff of a hospital located in a county with a population exceeding 75,000 must, as a condition to his admission to or retention on the hospital medical staff, furnish evidence of medical malpractice insurance in the minimum amount of $500,000. Mo. Ann. Stat. § 383.500 (West 1991). The statute does not specify if this required coverage is per occurrence or in the aggregate. This provision does not apply to physicians who limit their practice exclusively to patients seen or treated at a hospital and are insured exclusively under the hospital’s policy of insurance or its self-insurance program. Id.
All persons are barred from maintaining actions against the state and its political subdivisions by the doctrine of sovereign immunity, subject to certain exceptions. Mo. Ann. Stat. § 537.600 (West 1982 & Supp. 1998); Jeffers v. Ray County, 750 S.W.2d 599 (Mo. Ct. App. 1988). This immunity does not extend to state employees, including individual doctors and nurses, who may be sued. Municipalities, as opposed to public entities, are immune from suit only for torts arising from their governmental functions and not for torts arising from their proprietary functions. State Ex Rel. Trimble v. Ryan, 745 S.W.2d 672 (Mo. 1992). The operation of a hospital by a hospital district, city, county, or similar public entity has been held to constitute a governmental function entitled to immunity. State Ex Rel New Liberty Hospital District v. Pratt, 687 S.W.2d 184 (Mo. 1985).
Missouri and its political subdivisions may purchase liability insurance up to $100,000 per claimant and $1,000,000 per occurrence, and their immunity is waived to the extent of coverage. Mo. Ann. Stat. § 537.610 (West 1982 & Supp. 1998). Their immunity from liability for punitive damages, however, remains intact. Id. Any claim against Missouri must be submitted with evidence to the commissioner or administrator within two years after the claim accrues. Mo. Ann. Stat. § 33.120 (West 1992).
Missouri law does not require the reference of a medical malpractice action to an arbitrator.
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Revision Date: February 6, 1998