Medical malpractice cases involve allegations that a health care provider violated the governing standard of care while treating a patient, resulting in an injury to the patient. The harm from medical malpractice can result from either an action taken by the health care provider, or by omission, the failure to take a medically appropriate action.
A medical malpractice case may be pursued by an injured patient against any licensed health care provider, including a medical doctor, nurse, physical therapist, and mental health care professional.
Medical malpractice actions are normally based upon the theory of negligence, alleging that a medical professional violated a duty of care to a patient, resulting in an injury to the patient. Examples of medical malpractice include,
Failure to diagnose a medical condition or disease,
Misdiagnosis of a medical condition or disease,
Failure to provide medically appropriate treatment,
An unreasonable delay in the start of treatment for a diagnosed medical condition or disease;
Mistakes in the prescription or dosing of medication.
Medical malpractice cases may also result from the assertion that a patient did not give informed consent for a medical procedure, with the patient alleging that the procedure involved a material risk that was not properly disclosed by the physician, and that the patient would not have agreed to the procedure had the patient been aware of the risk. The proper performance of a medical procedure is not a defense to an informed consent action. While an informed consent case can potentially be based on an allegation of battery, in general the allegation will be that the outcome of the medical treatment was different than it would have been had the patient been able to make an informed choice.
Informed consent claims can also arise based upon changes to a course of treatment or surgery made after consent was given. In some contexts obtaining the patient's consent is not necessary, For example, in trauma care or cases involving a patient with a mental health problem it may not be possible to obtain consent prior to the commencement of medical treatment, or consent must be obtained from a third party such as a guardian, spouse or parent.
Damages in medical malpractice cases normally take the form of economic damages such as wage loss, the cost of medical care, and other out-of-pocket expenses, and non-economic damages for pain and suffering resulting from the injury. In rare cases, the level of misconduct may rise to the level that a victim of malpractice can recover punitive damages against the defendant.
Although the state of Missouri passed legislation limiting non-economic damages in medical malpractice cases, the state's Supreme Court has held that caps were unconstitutional under the state constitution.
Joint and Several Liability
When more than one defendant is sued, under joint and several liability each defendant may be required to pay the full amount of the verdict. This policy helps ensure that a malpractice victim will be fully compensated even if one of the defendants has insufficient funds or insurance. Missouri follows a modified rule of joint and several liability. If a defendant is found to be 51% or more at fault for the injury to the plaintiff, then the defendant is held jointly and severally liable for the amount of the judgment with the other defendants. A defendant found to be less than 50% at fault for the injury is only held responsible for that portion of the judgment proportionate to the party's degree of fault; however a party may be jointly responsible for payment of another defendant's share of the other defendant was an employee of that party, or if the party's liability for the fault of the other person arises under a duty created by the federal Employers' Liability Act (FELA).
The Collateral Source Rule
Under the traditional collateral source rule, payments received by the malpractice victim from third parties such as medical insurance companies would not be considered in the calculation of damages. Missouri has abolished the collateral source rule, and allows evidence both of amounts billed and amounts paid to be presented to the jury for determination of the value of medical services received by the plaintiff. The amount paid is presumed to be the reasonable value of medical services.
The statute of limitations limits the amount of time a person alleging medical malpractice has to file a lawsuit against health care providers. Under Missouri's statute of limitations, a malpractice action must be commenced within two years of the act or omission alleged to have injured the plaintiff. For claims involving a foreign object within the plaintiff's body or negligent failure to inform the patient of the results of medical tests, the two year limitations period starts to run when the plaintiff knew about or reasonably should have discovered the problem.
Minors under the age of eighteen can file a claim until their twentieth birthday. However, no malpractice action may be commenced after the expiration of ten years from the date of the act underlying the claim, or two years from a minor's eighteenth birthday, whichever is later
Additional rules affecting malpractice litigation in the State of Missouri include:
Affidavit of Merit Rules
For a medical malpractice action in Missouri, the plaintiff must file an affidavit with the court certifying the merit of the case. The certificate must stating that the plaintiff has obtained the written opinion of a legally qualified health care provider which states that the defendant health care provider failed to exercise the degree of care that a reasonably prudent and careful health care provider would have exercised under similar circumstances, and that such failure to use such reasonable care directly caused or directly contributed to the damages claimed in the petition.
An apology law prevents a plaintiff from using an apologetic or concilatory statement made by a defendant as evidence of the defendant's liability. Missouri has a general apology law, pursuant to which 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 their family is inadmissible as evidence of an admission of liability in a civil action, including a medical malpractice case. However, the rule does not prevent admission into evidence of a statement of fault.
If you believe that you have been injured by medical malpractice, a lawyer can help you by reviewing the facts and medical records of your case to determine if you have a viable case under the laws of your state. Medical malpractice cases are complex, and are very costly to litigate. Medical malpractice lawyers working on contingency fees will advance the cost of litigation, recovering those costs from the eventual verdict or settlement. A malpractice lawyer should be aware of changes in the law, and can help you avoid missing a filing deadline.