A Victim’s Guide to Medical Malpractice Claims

When you have a medical issue, you rely on the expertise of healthcare professionals. Often, you place your life in their hands. 

Sometimes something goes wrong, but you can comfort yourself knowing your treatment providers did everything they could. 

Other times, something goes wrong because your treatment provider acted improperly. When that happens, medical malpractice claims help compensate for the harm done. 

As the premier medical malpractice law firm in Missouri, we at Dempsey Kingsland and Osteen have seen firsthand how much harm negligent medical professionals can cause. 

Our staff of client advocates includes experienced medical malpractice attorneys alongside healthcare practitioners who review all our cases. 

When other firms encounter a case that is too complex, they ask us to help because they know, just like the insurance companies we go up against, that we leave no stone unturned.

If you or a loved one suffered an injury after receiving medical treatment and are unsure whether you were the victim of medical malpractice, reach out today.

Medical Malpractice Basics

Every medical malpractice lawsuit starts with a health care professional treating you or failing to treat you. In Missouri, you must meet specific requirements to bring a medical malpractice claim. 

You can only sue “a health care provider.” That provider must have “failed to use that degree of skill and learning ordinarily used under the same or similar circumstances” by members of their profession. 

Finally, the health care provider’s action or inaction must have “directly caused or contributed to” your injury. 

Health Care Provider

The legislature’s broad definition of a health care provider includes:

• • Physicians, 

• • Hospitals, 

• • Surgery centers, 

• • Long-term care facilities, 

• • Dentists, 

• • Registered and certified nurses, 

• • Podiatrists, 

• • Pharmacists, 

• • Chiropractors,

• • Physical therapists,

• • Psychologists, and

• • Physicians-in-training.

A health care provider is also “any other person or entity that provides health care services under the authority of a license or certificate.” 

Missouri courts have explored the meaning of this final phrase, emphasizing the requirement of either a license or certificate. For example, the courts concluded that a company that fitted prosthetic limbs was not a health care provider because it required no license or certificate to operate. 

In contrast, a hearing-instrument specialist licensed by the state was a health care provider. An attorney can advise you on the small exceptions to these rules.

Failure to Provide Skilled Care

Whether a health care provider “failed to use that degree of skill and learning ordinarily used under the same or similar circumstances” is often highly contested. 

Proving a health care provider failed to use appropriate care begins with the rules that regulate the provider’s profession. With that background and their experience, a medical expert can evaluate whether the provider failed to administer proper care. 

Both sides of a medical malpractice lawsuit usually have their own experts. Experienced medical malpractice attorneys can identify flaws in the opposing expert’s analysis to ensure they cannot obscure complex medical issues.

Caused or Contributed

Finally, the provider’s action or inaction must have “caused or contributed to” your injury. That the conduct need only have “contributed to” the injury means a provider is not off the hook if some harm would have occurred anyway.

Although causation is sometimes obvious—like when a surgeon leaves an instrument inside you after surgery and it perforates an organ—sometimes establishing causation can be trickier. 

For that reason, we also rely on the expertise of medical experts to show that the provider’s conduct caused or contributed to your injury. 

How Do You Sue?

In many ways, medical malpractice lawsuits work like other civil cases. You file a lawsuit, usually in the county where the injury occurred. 

You must file within a specific time frame, called the statute of limitations. There are some unique exceptions to the filing deadline for medical malpractice cases. 

In addition, the specific requirement that you must provide an expert opinion makes medical malpractice cases distinct.

Statute of Limitations

In Missouri, You must usually file your lawsuit within two years of when the malpractice occurred. Two exceptions exist. The first exception allows you to file within two years of when you either discover or should have discovered the malpractice if it involved: 

• • Leaving a foreign object inside your body, or

• • Failure to inform you of the results of medical tests.

The third is that SOME death claims can be brought within three years (in Missouri). However, if the death claim involves a claim of a ‘loss chance of recovery’, the deadline is two years, not three years.

The final exception allows a person who was a minor during the malpractice to sue until their 20th birthday. If you fail to file on time, the medical provider will ask the court to throw out your case, so filing sooner rather than later is essential. 

In Kanas, You must usually file your lawsuit within two years of when the malpractice occurred. Again, there are certain exceptions that apply including for minors who sometimes have until their nineteenth birthday to file a claim. However, for adults, the statute of repose prevents any claim from going back more than four years.

Expert Witness Affidavit

Every medical malpractice lawsuit in Missouri must include an affidavit from a “legally qualified health care provider” attesting that the case has merit. 

A legally qualified health care provider is someone licensed in the same profession as the defendant, in any state, and actively practicing or within five years of retirement. 

The affidavit must meet specific statutory requirements, and you must file it within 90 days of filing the case. 

What Compensation Can You Get?

There are two types of damages available in a medical malpractice claim, compensatory and punitive. Punitive damages are reserved for particularly egregious cases. 

Compensatory damages are much more common and include economic and noneconomic damages. How much you can recover in compensatory damages depends on how severe your injuries are and their effect on your future. 

Punitive Damages

Rarer than compensatory damages, punitive damages are available when the provider either “intentionally caused damage” or “demonstrated malicious misconduct.” 

The provider must have been more than negligent or reckless—they must have acted with bad intentions.

Economic Damages

Economic damages include: 

• • “Medical damages,” 

• • Lost wages, and 

• • Lost earning capacity. 

Medical damages are the cost of treating your injury, including:

• • Drugs, 

• • Therapy, and

• • Other health and rehabilitative services.

Although economic damages may be contested, they are typically the easiest to calculate and the hardest to debate.

Noneconomic Damages

Noneconomic damages include:

• • Pain, 

• • Suffering, 

• • Mental anguish, 

• • Inconvenience, 

• • Physical impairment, 

• • Disfigurement, 

• • Loss of capacity to enjoy life, and 

• • Loss of consortium.

Calculating noneconomic damages is usually more complex and depends on both personal and expert testimony. 

Under Missouri law, noneconomic damages are capped. Non-catastrophic personal injuries are subject to a lower cap than catastrophic personal injuries or death. A catastrophic personal injury is a physical injury resulting in:

• • Quadriplegia,

• • Paraplegia,

• • Loss of two or more limbs,

• • Permanent cognitive impairment,

• • Irreversible failure of one or more major organ systems; or

• • Significant vision impairment.

When the law was passed in 2015, damages were capped at $400,000 and $700,000, respectively. These amounts increase by 1.07% per year, making the caps in 2023:

• • $457,749 for non-catastrophic personal injuries, and 

• • $801,061 for catastrophic personal injuries and death.

Juries cannot be informed about these caps, so sometimes they will try to award higher noneconomic damages and have those damages reduced.

How Can You Begin?

If you believe you were the victim of medical malpractice, the first step is to contact a medical malpractice attorney. 

At Dempsey Kingsland and Osteen, our client advocates have handled high-profile, high-damage medical malpractice cases for decades. 

Our practice focuses on complex medical malpractice claims with high damages. If you or a loved one was harmed by medical malpractice, contact our firm today.