Wrongful Death: Recoverable Damages In Missouri and Kansas
MISSOURI STATUTORY LAW (SPECIFIC TO HEALTH CARE PROVIDERS):
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, no plaintiff shall recover more than three hundred fifty thousand dollars per occurrence for noneconomic damages from any one defendant V.A.M.S. 538.210
This statute overrides the wrongful death statute because in Missouri specific statutes pertaining to medical malpractice actions prevail over the general statutes.. Like the non-pecuniary cap in Kansas, the jury is not to be informed of this medical malpractice non-pecuniary cap.
Test for Pecuniary Damages
The test for pecuniary loss is whether there would have been a reasonable probability of pecuniary benefit to the plaintiff had the deceased’s life continued. In other words, has the plaintiff sustained pecuniary loss due to the decedent’s death? According to Missouri case law, the jury may consider several factors, including the health, the life expectancy, the talents, the age, the habits, the character, and the earning capacity of the decedent, in order to assess damages of this nature.
The claim for funeral expenses has changed in recent years. In the past, the only funeral expenses that could be claimed were those for the death of a minor child, a husband suing for a wife’s death, where a legal or moral obligation to pay existed or where, in order to prevent a burial at public expense, an administrator paid funeral expenses. Currently, however, the party bringing suit may now collect for funeral expenses.
An amendment to Missouri statutory law allows for the recovery of non-pecuniary damages such as loss of: services, consortium, companionship, comfort, instruction, guidance, counsel, training and support. Interestingly, the Missouri Supreme Court allowed for these types of damages long before the amendment was passed.
According to longstanding Missouri case law, these noneconomic damages are based upon the theory that the wrongdoer ought not be permitted to destroy the home or to take away the support, society, comfort, and care which one enjoys, and of which he has a moral right to expect the continuance, and escape liability to the extent of purely pecuniary compensation for the wrong, on the ground that these things, however important they may be to the life and future of the sufferer, are too intangible to be cognized by the law.
Before 1979, Missouri followed the traditional rule that any pecuniary losses were compensable.
These types of claims are very detailed and require testimonial evidence recounting lists of chores the decedent performed, the recreational activities he or she participated in with the plaintiff and the details of the physical, emotional and psychological relationship between the plaintiff and the deceased.
Non-pecuniary damages account for the loss of the decedent’s presence in the life of the plaintiff. The plaintiff is required to establish by substantial evidence with probative value or by reasonable interferences that can be properly drawn from the evidence. In order to claim noneconomic damages, the plaintiff must prove that he or she personally sustained actual damages as described above, and will not prevail by merely showing that the decedent was injured.
Grief and bereavement, two items not included in the list of recoverable damages, are explicitly excepted from the Missouri statutory law. Damages must relate to a loss of money or something by which money or something of value may be acquired. Grief and bereavement do not meet this standard in the eyes of most courts.
In Kansas, unlike Missouri, non-pecuniary losses do include mental anguish, suffering or bereavement in the calculation of damages.
(a) Damages may be recovered for, but are not limited to: (1) Mental anguish, suffering or bereavement; (2) loss of society, companionship, comfort or protection; (3) loss of marital care, attention, advice or counsel; (4) loss of filial care or attention (5) loss of parental care, training, guidance or education; and (6) reasonable funeral expenses for the deceased. (b) If no probate administration for the estate of the deceased has been commenced, expenses for the care of the deceased which resulted from the wrongful act may also be recovered by any one of the heirs who paid or became liable for them. Those expenses and any amount recovered for funeral expenses shall not be included in the limitation of K.S.A. 60-1903 and amendments thereto. K.S.A. 60-1904.
As previously noted, in Kansas there is a cap on non-pecuniary damages in wrongful death cases, so the distinction between pecuniary and non-pecuniary damages is far more significant under the Kansas statute than it is in Missouri. Under K.S.A. 60-1903, the limit on non-pecuniary damages was $100,000. On July 1, 1998 House Bill 2143 raised the limitation to $250,000. The court cannot instruct the jury on this limitation. Arguably, this can create what is known as the “cap trap”, in that any verdict reached by a jury for non-pecuniary damages in excess of the $250,000 limit is automatically reduced to the $250,000 maximum.
This cap might lead someone to believe that cases in which the decedent was not making financial contributions to the plaintiff would be limited to the $250,000 cap. The legal definition of “pecuniary” damages goes beyond financial contributions and includes loss of services, attention, care, parental or filial, advice and protection.
If your loved one has died due to the negligence of another, you are sure to have many important and immediate questions. Answers to many of your questions can be found on this site. You can also go to our "just ask" section and send us your question and we will promptly respond, or use our live chat or just call us to discuss your situation without obligation.
At Kansas City Accident Injury Attorneys, we have been pursuing wrongful death claims on behalf of the families of deceased victims for more than 15 years. We understand the devastating impact of a wrongful death and we are committed to seeing justice served and fair compensation recovered. Contact the experienced wrongful death attorneys at Kansas City Accident Injury Attorneys at 816-471-5111