538.220. Damages, how paid--security required for future damage payments, when, duration--attorney's fees--death of judgment creditor, effect. - Missouri Statutes

Damages, how paid--security required for future damage payments,when, duration--attorney's fees--death of judgment creditor, effect.

538.220. 1. In any action against a health care provider for damagesfor personal injury or death arising out of the rendering of or the failureto render health care services, past damages shall be payable in a lumpsum.

2. At the request of any party to such action made prior to the entryof judgment, the court shall include in the judgment a requirement thatfuture damages be paid in whole or in part in periodic or installmentpayments if the total award of damages in the action exceeds one hundredthousand dollars. Any judgment ordering such periodic or installmentpayments shall specify a future medical periodic payment schedule, whichshall include the recipient, the amount of each payment, the intervalbetween payments, and the number of payments. The duration of the futuremedical payment schedule shall be for a period of time equal to the lifeexpectancy of the person to whom such services were rendered, as determinedby the court, based solely on the evidence of such life expectancypresented by the plaintiff at trial. The amount of each of the futuremedical periodic payments shall be determined by dividing the total amountof future medical damages by the number of future medical periodicpayments. The court shall apply interest on such future periodic paymentsat a per annum interest rate no greater than the coupon issue yieldequivalent, as determined by the Federal Reserve Board, of the averageaccepted auction price for the last auction of fifty-two-week United StatesTreasury bills settled immediately prior to the date of the judgment. Thejudgment shall state the applicable interest rate. The parties shall beafforded the opportunity to agree on the manner of payment of futuredamages, including the rate of interest, if any, to be applied, subject tocourt approval. However, in the event the parties cannot agree, theunresolved issues shall be submitted to the court for resolution, eitherwith or without a post-trial evidentiary hearing which may be called at therequest of any party or the court. If a defendant makes the request forpayment pursuant to this section, such request shall be binding only as tosuch defendant and shall not apply to or bind any other defendant.

3. As a condition to authorizing periodic payments of future damages,the court may require a judgment debtor who is not adequately insured topost security or purchase an annuity adequate to assure full payment ofsuch damages awarded by the judgment. Upon termination of periodicpayments of future damages, the court shall order the return of thissecurity or so much as remains to the judgment debtor.

4. If a plaintiff and his attorney have agreed that attorney's feesshall be paid from the award, as part of a contingent fee arrangement, itshall be presumed that the fee will be paid at the time the judgmentbecomes final. If the attorney elects to receive part or all of such feesin periodic or installment payments from future damages, the method ofpayment and all incidents thereto shall be a matter between such attorneyand the plaintiff and not subject to the terms of the payment of futuredamages, whether agreed to by the parties or determined by the court.

5. Upon the death of a judgment creditor, the right to receivepayments of future damages, other than future medical damages, being paidby installments or periodic payments will pass in accordance with theMissouri probate code unless otherwise transferred or alienated prior todeath. Payment of future medical damages will continue to the estate ofthe judgment creditor only for as long as necessary to enable the estate tosatisfy medical expenses of the judgment creditor that were due and owingat the time of death, which resulted directly from the injury for whichdamages were awarded, and do not exceed the dollar amount of the totalpayments for such future medical damages outstanding at the time of death.

6. Nothing in this section shall prevent the parties from contractingand agreeing to settle and resolve the claim for future damages. If suchan agreement is reached by the parties, the future periodic paymentschedule shall not apply.

(L. 1986 S.B. 663 § 7, A.L. 2005 H.B. 393)

CROSS REFERENCE:

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

(1992) Statute does not violate the equal protection nor does it violate due process. Statute is rationally related to the general goal of preserving adequate, affordable health care for all Missourians by permitting defendants to satisfy judgments for future damages in periodic or installment payments. Adams v. The Children's Mercy Hospital, 832 S.W.2d 898 (Mo.banc).

(1992) Medical malpractice cases are exempted from provisions of section 408.040, RSMo, which establish post-judgment interest on damages at nine percent. Section gives the circuit court, in the absence of a court-approved agreement between the parties, discretion in establishing the plan for future payments. Vincent v. Johnson, 833 S.W.2d 859 (Mo.banc).

(1993) Where medical malpractice suit was brought by patient and her spouse, provision of statute regarding future payments if total award of damages in action exceeds one hundred thousand dollars applies to each plaintiff's award separately; contingent attorney's fees are payable at time of judgment together with all past damages; statute provision permitting payment plan for future damages does not require payments be made over patient's entire life expectancy; and patient may accept an annuity but is not required to accept an annuity as satisfaction of judgment. Roesch v. Ryan, 841 F.Supp. 288 (E.D.).