Effective 28 Aug 2017

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 commerce and insurance, 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.

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(L. 1986 S.B. 663 § 5, 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 REFERENCES:

Applicability of statute changes to cases filed after August 28, 2005, 538.305

Time limitation to bring malpractice actions, 516.105

(2010) Application of new cap on noneconomic damages to causes of action that accrue prior to effective date of law violates constitutional prohibition of retrospective laws. Klotz v. St. Anthony's Medical Center, 311 S.W.3d 752 (Mo.banc).

(2012) Limitations on amount of non-economic damages recoverable from a health care provider under cause of action for wrongful death does not violate constitutional right to a trial by jury or principle of separation of powers. Sanders v. Ahmed, 364 S.W.3d 195 (Mo.banc).

(2012) Cap on non-economic damages violates the right to trial by jury guaranteed by Article I, Section 22(a) of the Missouri Constitution. Watts v. Lester E. Cox Medical Centers, 376 S.W.3d 633 (Mo.banc).