198.093. Violations of resident's rights--complaints--legal action--damages. - Missouri Statutes

Violations of resident's rights--complaints--legal action--damages.

198.093. 1. Any resident or former resident who is deprivedof any right created by sections 198.088 and 198.090, or theestate of a former resident so deprived, may file a writtencomplaint within one hundred eighty days of the allegeddeprivation or injury with the office of the attorney generaldescribing the facts surrounding the alleged deprivation. A copyof the complaint shall be sent to the department by the attorneygeneral.

2. The attorney general shall review each complaint and mayinitiate legal action as provided under sections 198.003 to198.186.

3. If the attorney general fails to initiate a legal actionwithin sixty days of receipt of the complaint, the complainantmay, within two hundred forty days of filing the complaint withthe attorney general, bring a civil action in an appropriatecourt against any owner, operator or the agent of any owner oroperator to recover actual damages. The court may, in itsdiscretion, award punitive damages which shall be limited to thelarger of five hundred dollars or five times the amount ofspecial damages, unless the deprivation complained of is theresult of an intentional act or omission causing physical oremotional injury to the resident, and may award to the prevailingparty attorney's fees based on the amount of time reasonablyexpended, and may provide such equitable relief as it deemsnecessary and proper; except that, an attorney who is paid inwhole or part from public funds for his representation in anycause arising under this section shall not be awarded anyattorney fees.

4. No owner or operator who pleads and proves as anaffirmative defense that he exercised all care reasonablynecessary to prevent the deprivation and injury for whichliability is asserted shall be liable under this section.

5. Persons bringing suit to recover against a bond forpersonal funds pursuant to section 198.096 shall not be requiredto first file a complaint with the attorney general pursuant tosubsection 1 of this section, nor shall subsection 1 be construedto limit in any way the right to recover on such bond.

6. Nothing contained in sections 198.003 to 198.186 shall beconstrued as abrogating, abridging or otherwise limiting theright of any person to bring appropriate legal actions in anycourt of competent jurisdiction to insure or enforce any legalright or to seek damages, nor shall any provision of theabove-named sections be construed as preventing or discouragingany person from filing a complaint with the department ornotifying the department of any alleged deficiency ornoncompliance on the part of any facility.

(L. 1979 S.B. 328, et al. § 31)

(2003) Failure by relatives of deceased nursing home resident to file written complaint with Attorney General precluded filing wrongful death claim against nursing home. Dickerson v. Deaconess Long Term Care of Missouri, Inc., 279 F.Supp.2d 1068 (E.D.Mo.).