Section 516.105

Title XXXV CIVIL PROCEDURE AND LIMITATIONS

Chapter 516

Effective - 28 Aug 2016, 3 histories, see footnote   (history) 

  516.105.  Actions against health care and mental health providers (medical malpractice). — All actions against physicians, hospitals, dentists, registered or licensed practical nurses, optometrists, podiatrists, pharmacists, chiropractors, professional physical therapists, mental health professionals licensed under chapter 337, and any other entity providing health care services and all employees of any of the foregoing acting in the course and scope of their employment, for damages for malpractice, negligence, error or mistake related to health care shall be brought within two years from the date of occurrence of the act of neglect complained of, except that:

  (1)  In cases in which the act of neglect complained of is introducing and negligently permitting any foreign object to remain within the body of a living person, the action shall be brought within two years from the date of the discovery of such alleged negligence, or from the date on which the patient in the exercise of ordinary care should have discovered such alleged negligence, whichever date first occurs; and

  (2)  In cases in which the act of neglect complained of is the negligent failure to inform the patient of the results of medical tests, the action for failure to inform shall be brought within two years from the date of the discovery of such alleged negligent failure to inform, or from the date on which the patient in the exercise of ordinary care should have discovered such alleged negligent failure to inform, whichever date first occurs; except that, no such action shall be brought for any negligent failure to inform about the results of medical tests performed more than two years before August 28, 1999.  For purposes of this subdivision, the act of neglect based on the negligent failure to inform the patient of the results of medical tests shall not include the act of informing the patient of the results of negligently performed medical tests or the act of informing the patient of erroneous test results; and

  (3)  In cases in which the person bringing the action is a minor less than eighteen years of age, such minor shall have until his or her twentieth birthday to bring such action.

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In no event shall any action for damages for malpractice, error, or mistake be commenced after the expiration of ten years from the date of the act of neglect complained of or for two years from a minor's eighteenth birthday, whichever is later.

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(L. 1976 S.B. 470 § 2, A.L. 1999 H.B. 274, A.L. 2005 H.B. 393, A.L. 2016 H.B. 1765)

CROSS REFERENCE:

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

(1985) The reduction of the limitation period for medical malpractice actions should be applicable only to claims where the alleged act of malpractice occurred after the effective date of the section. Goodman v. St. Louis Children's Hospital (Mo.  banc), 687 S.W.2d 889.

(1985) The ten-year maximum was designed to limit the "foreign object" exception to the two year statute, and not to limit the time within which an infant who suffers damage from malpractice within his first two years may file suit. McLeran v. St. Luke's Hospital of Kansas City (Mo. banc), 687 S.W.2d 892.

(1992) American Red Cross is health care professional providing health care services, therefore falls within the two year statute of limitations of this statute and blood contaminant is not "foreign object" for purposes of exception to statute of limitation.  Smith v. Paslode Corp., 799 F.Supp. 960 (E.D. Mo.).

(1993) Where plaintiff contracted HIV virus from blood transfusion, Red Cross is health care services provider and statute of limitations for medical malpractice claims applies; furthermore, statute's foreign object exception does not apply because, although HIV was foreign to plaintiff's body before transfusions, once plaintiff became infected with HIV virus, virus cannot be removed.  Smith v. Paslode Corp., 7 F.3d 116 (8th Cir.).

(1994) Patient's suit for strict product liability against health care provider for implant of defective medical device was not barred by statute's two year statute of limitations as statute covers all actions for malpractice, negligence, error or mistake related to health care which all require some type of fault.  Strict liability requires no fault.  Bell v. Poplar Bluff Physicians Group, Inc., 879 S.W.2d 618 (Mo. App. S.D.).

(1996) Actions brought pursuant to this section are not tolled under 516.170.  Batek v. Curators of University of Missouri, 920 S.W.2d 895 (Mo.banc).

(1997) A nine-year lapse in treatment between surgery complained of and subsequent procedures was not continuing care that would toll the statute of limitations for a medical malpractice claim.  Shah v. Lehman, 953 S.W.2d 955 (Mo.App.E.D.).

(2015) Ten-year statute of repose could not be equitably tolled and does not violate constitutional provisions of equal protection, open courts, due process, or special laws.  Ambers-Phillips v. SSM DePaul Health Center, 459 S.W.3d 901 (Mo.banc).