Missouri Medical Malpractice Laws

I. Overview of Basic Principles and Concepts

Missouri has taken the dramatic step of abolishing its common-law claim for medical malpractice, replacing it with a statutory one. The intended purpose of this legislative maneuver was to skirt around Missouri Supreme Court decisions that had struck down statutory upper limits or “caps” on monetary damages, as is discussed more fully in Section VII below.

The elements of Missouri’s new statutory medical malpractice claim track those of the old common-law claim. A plaintiff seeking to prove malpractice must demonstrate: (1) that the healthcare provider failed to use that degree of skill and learning ordinarily used under the same or similar circumstances by members of the same profession; and (2) that such failure directly caused or contributed to the plaintiff’s injury or death. Mo. Rev. Stat. § 538.210(1)
; see alsoMo. Rev. Stat. § 1.010(2).

II. Filing Deadlines for Medical Malpractice Claims

Basic Time Limit

Under Missouri law, a plaintiff generally must file a claim for medical malpractice within two years. The two-year “statute of limitations” commences running from the date when the alleged act of neglect occurred.

But importantly, there is an outer limit for malpractice claims of 10 years. Known as a “statute of repose,” the 10-year restriction is designed to protect defendants from indefinite or open-ended potential liability. Mo. Rev. Stat. § 516.105.

In other words, there are two distinct time limits to keep in mind: a statute of limitations and a statute of repose.

Discovery Rule

In certain instances, Missouri will pause the statute of limitations. First, if a physician leaves an unauthorized foreign object (e.g., a sponge) in a patient’s body, the two-year clock does not commence running until the negligence was, or reasonably should have been, discovered. Id.

In addition, if a healthcare provider negligently fails to inform a patient of medical test results (such as tests revealing a disease), the clock does not start ticking until the negligent failure to inform was, or reasonably should have been, discovered. Id.

Even in these hidden negligence situations, though, a plaintiff generally still must bring the suit within the outer time limit of 10 years. That is, the statute of repose still applies. Id.; Ambers-Phillips v. SSM DePaul Health Center, 459 S.W.3d 901 (Mo. 2015).

Continuing Treatment Exception

Another important doctrine in Missouri is that the two-year clock does not start ticking until the patient stops receiving treatment from the allegedly negligent healthcare provider. “Missouri courts have long recognized,” the Court of Appeals observed in Norman v. Lehman, that the statute of limitations does not begin to run “until treatment by the medical defendant ceases.” 347 S.W.3d 611 (Mo. Ct. App. 2011).

For example, in Norman a patient brought suit against a physician for allegedly performing a negligent operation on his knee. Because it was unclear exactly when the treatment relationship ended and whether the patient had brought the suit within two years of that point, the Missouri Court of Appeals held that the trial court should not have dismissed the patient’s lawsuit on summary judgment as being untimely filed. Id.; see also Hooe v. Saint Francis Medical Center, 284 S.W.3d 738 (Mo. Ct. App. 2009).

Injured Patients Who Are Minors

Special time limits apply in cases alleging that a child was injured by healthcare treatment. Generally speaking, minors have until their 20th birthday to bring a malpractice claim. Mo. Rev. Stat. § 516.105(3)

III. Healthcare Affidavit and Other Requirements

Healthcare Affidavit

One particularly important requirement of Missouri medical malpractice law is that plaintiffs must submit an affidavit at the outset of the litigation to show that the case has some merit. The basic purpose of this requirement is to weed out factually unsupported claims.

Specifically, by statute, the plaintiff’s attorney must file an affidavit stating that he or she has obtained a healthcare expert’s written opinion that the defendant committed malpractice causing damage to the plaintiff. The healthcare expert who provides the opinion must have practiced actively, and recently, in “substantially the same specialty” as the defendant and must be properly licensed in Missouri or another state. Unless an acceptable healthcare affidavit is filed within 90 days of initiating the lawsuit, the plaintiff’s case generally will be dismissed. Mo. Rev. Stat. § 538.225.

A separate affidavit must be filed for each defendant named in the lawsuit. Id.

While an extension of up to 90 days is possible, extensions require a showing of good cause. Id.; Austin v. Schiro, 466 S.W.3d 694 (Mo. Ct. App. 2015).

Because Missouri courts strictly construe the healthcare affidavit mandate, plaintiffs should be sure to follow the statute’s requirements exactly. Mayes v. St. Luke’s Hosp. of Kansas City, 430 S.W.3d 260 (Mo. banc 2014).

In practice, the affidavit requirement imposes a significant burden on plaintiffs. Because it is often difficult to find a local healthcare provider “willing to criticize the actions of his or her colleagues,” plaintiffs frequently must hire non-local experts. Lang v. Goldsworthy, 470 S.W.3d 748 (Mo. 2015) (Teitelman, J., dissenting).

Challenges to Adequacy of Healthcare Affidavit

Even if the healthcare affidavit is timely filed, the defendant can challenge it as not satisfying the statute’s substantive requirements. A dispute procedure is laid out in the statute itself: Within 180 days after the commencement of the lawsuit, any defendant may file a motion to have the court examine the healthcare affidavit. If the court determines that the healthcare expert’s opinion fails to meet the statutory requirements, the court has 30 days to conduct a hearing to determine whether there is “probable cause” to believe that the plaintiff will be able to locate any “qualified and competent” medical expert to support the malpractice claim. If the court finds no such probable cause, the court must dismiss the case “and hold the plaintiff responsible for the payment of the defendant’s reasonable attorney fees and costs.” Mo. Rev. Stat. § 538.225(7).

One particular challenge sometimes raised to a healthcare affidavit is to dispute the healthcare expert’s knowledge of the medical procedure at issue. In Spradling v. SSM Health Care St. Louis, a defendant neurosurgeon was successful in convincing the trial court to dismiss a malpractice lawsuit on the ground that the plaintiffs’ healthcare affidavit relied on the opinion of a radiologist, and therefore the affidavit was defective because the two physicians practiced in different specialties. But on appeal the Missouri Supreme Court reversed, noting that the radiologist had performed or assisted in more than 3,000 spinal surgeries of the same type as involved in the lawsuit against the neurosurgeon. Therefore, the trial court should not have found the healthcare affidavit defective, the high court ruled. 313 S.W.3d 683 (Mo. banc 2010); see alsoCaplinger v. Rahman, No. SD34820, 2017 WL 3473839 (Mo. Ct. App. Aug. 14, 2017).

Venue

In Missouri, special rules govern which Missouri county is the appropriate venue for the plaintiff to bring a state court malpractice claim. Mo. Rev. Stat. § 538.232.

Arbitration

Unlike some states, Missouri has no statute specifically defining the rules and procedures that apply in medical malpractice arbitrations. Arbitration is a method of resolving disputes outside of court. It is used only if both parties agree to have the case heard by a professional arbitrator rather than a judge and jury.

IV. Immunities and Limitations on Liability

Charitable or Free Medical Care

Under Missouri law, a patient ordinarily may not bring a malpractice claim against a licensed physician who provides medical care at a public health department or a nonprofit health clinic if the treatment is certified in advance as being rendered free of charge.

But the immunity does not apply if the physician committed “gross negligence” (that is, particularly serious negligence) or if the physician maintained liability insurance that might provide coverage. Mo. Rev. Stat. § 538.228.

Government Defendants

Because citizens generally cannot sue governments without their consent, issues of “immunity” can arise when patients bring malpractice lawsuits against publicly owned medical facilities or publicly employed healthcare professionals.

Under Missouri law, when publicly employed emergency medical personnel are treating patients, their negligent acts are shielded by so-called official immunity if they are acting in a “true emergency situation.” Thomas v. Brandt, 325 S.W. 3d 481 (Mo. Ct. App. 2010).

On a separate immunity question, nursing home districts do not have sovereign immunity from suit, according to Rush v. Senior Citizens Nursing Home Dist. of Ray County, 212 S.W.3d 155 (Mo. Ct. App. 2006).

Negligent Credentialing

Hospitals are protected by statute, to some degree, from claims that they acted negligently in granting staff privileges to doctors who lacked proper credentials. SeeLeBlanc v. Research Belton Hosp., 278 S.W.3d 201 (Mo. Ct. App. 2008).

V. Medical Expert Witnesses

Who Qualifies?

As discussed above in Section III, a Missouri plaintiff bringing a medical malpractice lawsuit faces the initial obstacle of filing a healthcare affidavit. For purposes of such affidavits, only certain healthcare providers are considered competent to provide expert opinions: the expert must be licensed in Missouri or another state in the “same profession” as the defendant and must be “either actively practicing or within five years of retirement from actively practicing substantially the same specialty as the defendant.” If the expert does not satisfy these license and practice requirements, the court will reject the affidavit and possibly dismiss the case. Mo. Rev. Stat. § 538.225.

Outside of the affidavit context, Missouri courts faced with challenges to the admissibility of expert testimony rely on Mo. Rev. Stat. § 490.065(2). As revised in 2017, it says that an expert witness must possess the requisite “knowledge, skill, experience, training, or education,” and that his or her testimony must be based on scientifically reliable methods.

As the Missouri Supreme Court has emphasized, the healthcare affidavit statute pertains only to affidavits and does not determine the requirements for providing expert testimony at trial. For purposes of trial, a court will look to the broader expert witness statute, Section 490.065(2), in deciding who is qualified to testify as an expert. Klotz v. St. Anthony’s Medical Center, 311 S.W.3d 752, 760-61 (Mo. banc 2010).

VI. Comparative Negligence / Proportionate Liability

Sometimes a healthcare provider will try to pin the blame for a poor treatment outcome on the patient, accusing him or her of ignoring post-surgery instructions or answering health history questions inaccurately, for instance. In cases where a patient does bear some fault for causing his or her own medical injury, Missouri applies the doctrine of “comparative fault.” Under his doctrine, a careless or negligent patient’s lawsuit is not barred completely, but any monetary damages obtained are reduced.

For example, if the plaintiff was 25 percent at fault for the bad treatment outcome and the physician 75 percent, the plaintiff can recover monetary damages from the physician but the amount will be reduced by 25 percent.

In Missouri, this comparative-fault system was created by judicial decision, contrary to many states that have done so through legislation. SeeGustafson v. Benda, 661 S.W.2d 11 (Mo. banc 1983); see alsoWittmeyer v. Braby, 706 S.W.2d 263 (Mo. Ct. App. 1986).

On a different issue, if there are multiple defendants, who pays what share of the monetary damages? Under Missouri law, each defendant generally is liable for damages only in proportion to that defendant’s percentage of fault. For instance, if a particular defendant bore 30 percent of the fault, that defendant pays 30 percent of the monetary damages. But if a defendant is 51 percent or more at fault, it is “jointly and severally” liable for the whole award. Mo. Rev. Stat. § 537.067.

VII. Limitations on Damages

Money claimed by a plaintiff as compensation for a loss is referred to as monetary “damages.” In Missouri some types of damages are limited or capped.

Economic Damages

There is no cap on damages for losses such as the cost of medical care, loss of wages, and loss of earning capacity.

Noneconomic Damages

For more subjective types of losses such as pain and suffering, there is a $400,000 statutory cap (in 2015 dollars). The cap rises to $700,000 in cases where the medical treatment caused “catastrophic personal injury” (i.e., particular severe injury) or death. To adjust for inflation, the caps automatically increase by 1.7 percent each year. See Mo. Rev. Stat. §§ 538.210(2), (10)&538.205(1), (9).

There is some question, it should be noted, as to whether this cap on pain-and-suffering damages is constitutional. The Missouri Supreme Court struck down an earlier version of the damage cap in 2012, holding that the cap violated the state constitution because it infringed on the jury’s constitutionally protected role in determining the amount of damages sustained by an injured party. Watts v. Lester E. Cox Medical Center, 376 S.W.3d 633 (Mo. banc 2012).

Many members of Missouri General Assembly were unhappy with the Watts decision. Three years later, the legislature in 2015 enacted amendments designed to sidestep the decision and enable a cap to pass constitutional muster. Specifically, in a dramatic maneuver, the legislature expressly abolished the state’s longstanding common-law medical malpractice claim and replaced it with a purely statutory claim. SeeMo. Rev. Stat. § 538.210(1); see also Mo. Rev. Stat. § 1.010(2).

The bottom line is this: the General Assembly enacted new legislation in 2015 to re-impose the cap on pain-and-suffering damages, in response to the Missouri Supreme Court’s decision striking down an earlier version. See also Dodson v. Ferrara, 491 S.W.3d 542 (Mo. banc 2016).

Punitive Damages

Punitive damages are used to punish an especially badly behaving defendant. Such damages can exceed the amount of the plaintiff’s proven loss. To obtain punitive damages, there must be evidence that the healthcare provider engaged in “willful, wanton or malicious misconduct.” Mo. Rev. Stat. § 538.210(8); see alsoKoon v. Walden, No. ED104987, 2017 WL 4782843 (Mo. Ct. App. Oct. 24, 2017).

By statute, punitive damages cannot exceed the greater of $500,000 or five times the net amount of the judgment awarded to the plaintiff against the defendant. Mo. Rev. Stat. § 510.265.

But, once again, it should be noted that there are possible constitutional issues. In 2014 the Missouri Supreme Court ruled broadly that the punitive damages cap violates the state constitution by interfering with the jury’s constitutionally protected role in determining damages awards. Lewellen v. Franklin, 441 S.W.3d 136 (Mo. banc 2014). This was the same rationale the high court had relied on two years earlier in striking down the cap on malpractice pain-and-suffering damages in Watts.

As noted above, Missouri’s General Assembly in 2015 responded to these judicial developments by abolishing the state’s common-law malpractice claim and replacing it with a statutory claim. Lawmakers evidently believed that this stratagem would undercut the high court’s constitutional rationale for invalidating damage caps in malpractice cases. See alsoKoon, supra.

The bottom line is this: the General Assembly enacted new legislation in 2015 intended to re-impose the cap on punitive damages in malpractice cases.

Other Damages Provisions

Missouri has some other noteworthy damages provisions. One limits a healthcare organization’s liability for malpractice committed by nonemployees. Further, it says that a parent organization cannot be sued for malpractice committed by a subsidiary, except in limited circumstances. Mo. Rev. Stat. § 538.210(4).

Two other provisions relate to the nuts and bolts of calculating and paying malpractice damages awards. First, prevailing plaintiffs cannot expect to receive “post-judgment interest”—that is, an interest rate to compensate the plaintiff for the time delay in receiving the damages award. Mo. Rev. Stat. § 538.300; Dieser v. St. Anthony’s Medical Center, 498 S.W.3d 419 (Mo. banc 2016). And a defendant may have the option to pay certain damages such as future medical expenses in installment payments rather than as a lump sum. Mo. Rev. Stat. § 538.220.

VIII. Limitations on Attorney Fees

No Missouri medical malpractice statute sets an upper limit on attorney fees.

IX. Patient Compensation Funds

While some states have created compensation funds to reimburse certain patients injured by healthcare treatment, Missouri has not done so.

X. Apologies and Sympathetic Gestures

If a healthcare provider apologizes for a poor treatment outcome, can the apology be used in court as evidence of negligence?

In Missouri, a healthcare provider’s statements expressing sympathy or compassion to a patient or the patient’s family usually cannot be used to prove malpractice. But a healthcare provider’s “statement of fault” can be offered as evidence that the healthcare provider was negligent. Mo. Rev. Stat. § 538.229.

XI. Communications with Treating Physicians

May defense counsel communicate informally with a patient’s treating physicians without the patient’s consent?

Generally speaking, physicians will violate patient−physician confidentiality if they speak informally with defense counsel without the patient’s authorization. In Missouri a patient also cannot be compelled to sign an authorization form consenting to such communications. State ex rel. Proctor v. Messina, 320 S.W.3d 145 (Mo. banc 2010).

While Missouri law itself does not prohibit these informal (so-called “ex parte”) contacts, Missouri courts must enforce the patient confidentiality protections found in the federal Health Insurance Portability and Accountability Act of 1996, the Missouri Supreme Court explained in Proctor. See also 45 C.F.R. § 164.512(e).

XII. Loss-of-Chance Doctrine

Unlike many states, Missouri recognizes “loss of chance” claims.

To understand the nature of such claims, consider Wollen v. DePaul Health Center, where a wife filed suit after her husband died of undiagnosed gastric cancer. Moving to dismiss the case, the defendant healthcare providers argued that there was no proof their alleged negligence “caused” her husband’s death, because he would have had only a 30-percent chance of survival and cure in any event, which is not sufficient to prove causation in a court of law, they insisted.

Rejecting the defendants’ argument, the Missouri Supreme Court recognized claims for lost chance of recovery. “When patients go to doctors with serious illnesses, they expect to have those chances that medical science has provided,” even if those chances are small, the high court explained. Thus the wife could proceed with her malpractice/wrongful death suit, even if her husband would have had only a 30-percent chance of survival with appropriate diagnosis and treatment. 828 S.W.2d 681 (Mo. banc 1992); Markham v. Fajatin, 325 S.W.3d 455 (Mo. Ct. App. 2010).

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