Chapter 538 Tort Actions Based on Improper Health Care

538.232 - Venue for certain actions against health care providers, where.

Steven Groce, Attorney Advertisement

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, 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, 538.305

538.215 - Damage itemization by trier of fact — excess noneconomic damages to be reduced by court.

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 2-03-86

538.205 - Definitions.

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

(1)"Catastrophic personal injury", a physical injury resulting in:

(a)Quadriplegia defined as the permanent loss of functional use of all four limbs;

(b)Paraplegia defined as the permanent loss of functional use of two limbs;

(c)Loss of two or more limbs;

(d)An injury to the brain that results in permanent cognitive impairment resulting in the permanent inability to make independent decisions or engage in one or more of the following activities of daily living:eating, dressing, bathing, toileting, transferring, and walking;

(e)An injury that causes irreversible failure of one or more major organ systems; or

(f)Vision loss such that the patient's central visual acuity is no more than twenty/two-hundred in the better eye with the best correction or whose field of vision in the better eye is restricted to a degree that its widest diameter subtends an angle no greater than twenty degrees;

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

(3)"Employee", any individual who is directly compensated by a health care provider for health care services rendered by such individual and other nonphysician individuals who are supplied to a health care provider by an entity that provides staffing;

(4)"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;

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

(6)"Health care provider", any physician, hospital, health maintenance organization, ambulatory surgical center, long-term care facility including those licensed under chapter 198, 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;

(7)"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;

(8)"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;

(9)"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;

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

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

(12)"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, A.L. 2015 S.B. 239, A.L. 2017 H.B. 452)

*Section 538.230 was repealed by H.B. 393, 2005.

CROSS REFERENCE:

Applicability of statute changes to cases filed after August 28, 2005, 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.).

538.305 - Applicability to causes of action, when.

The provisions of this act*, except for section 512.099, 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.

538.229 - Certain statements, writings, and benevolent gestures inadmissible, when — definitions.

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, 538.305

538.225 - Affidavit by a health care provider certifying merit of case — legally qualified health care provider, defined — content filed, when — failure to file, effect — in camera review, when.

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, 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).

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

538.235 - Laws applicable to what actions.

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)

538.228 - Immunity from civil liability for certain health care professionals and entities, when.

Any physician licensed under chapter 334 who provides medical treatment to a patient at a city or county health department organized under chapter 192 or chapter 205, 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 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, 538.305

538.220 - Damages, how paid — security required for future damage payments, when, duration — attorney's fees — death of judgment creditor, effect.

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, 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.).

538.300 - Certain laws not applicable to sections 538.205 to 538.230.

The provisions of section 260.552, sections 537.068 and 537.117, and 537.760 to 537.765, and subsections 2 and 3 of section 408.040 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, 538.305

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

538.210 - No common law cause of action — limitation on noneconomic damages — jury not to be informed of limit — limit — punitive damages, requirements — annual increase on damages limit, amount — nonseverability clause.

1.A statutory cause of action for damages against a health care provider for personal injury or death arising out of the rendering of or failure to render health care services is hereby created, replacing any such common law cause of action.The elements of such cause of action are that the health care provider failed to use that degree of skill and learning ordinarily used under the same or similar circumstances by members of the defendant's profession and that such failure directly caused or contributed to cause the plaintiff's injury or death.

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

(2)Notwithstanding the provisions of subdivision (1) of this subsection, in any action against a health care provider for damages for a catastrophic personal injury arising out of the rendering or failure to render heath care services, no plaintiff shall recover more than seven hundred thousand dollars for noneconomic damages irrespective of the number of defendants.

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

3.(1)This section 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.

4.No health care provider 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 individual who is not an employee of such health care provider, unless the individual is an employee of a subsidiary in which the health care provider has a controlling interest and the subsidiary does not carry a professional liability insurance policy or self-insurance covering said individual of at least one million dollars per occurrence and a professional liability insurance policy or self-insurance covering said subsidiary of least one million dollars per occurrence.

5.The limitations on liability as provided for in this section shall apply to all claims for contribution.

6.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.

7.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.

8.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.

9.For purposes of sections 538.205 to 538.230*, all individuals and entities asserting a claim for a wrongful death under section 537.080 shall be considered to be one plaintiff.

10.The limitations on awards for noneconomic damages provided for in this section shall be increased by one and seven-tenths percent on an annual basis effective January first of each year.The current value of the limitation shall be calculated by the director of the department of insurance, financial institutions and professional registration, who shall furnish that value to the secretary of state, who shall publish such value in the Missouri Register on the first business day following January first, but the value shall otherwise be exempt from the provisions of section 536.021.

11.In any claim for damages under this chapter, and upon post-trial motion following a jury verdict with noneconomic damages exceeding four hundred thousand dollars, the trial court shall determine whether the limitation in subsection 2 of this section shall apply based on the severity of the most severe injuries.

12.If a court of competent jurisdiction enters a final judgment on the merits that is not subject to appeal and that declares any provision or part of either section 1.010 or this section to be unconstitutional or unenforceable, then section 1.010 and this section, as amended by this act and in their entirety, are invalid and shall have no legal effect as of the date of such judgment, and this act, including its repealing clause, shall likewise be invalid and of no legal effect.In such event, the versions of sections 1.010 and this section that were in effect prior to the enactment of this act shall remain in force.