Section 42 Cause of Action Generally

• Library: Damages 2012

Although not technically falling within the confines of the Missouri Wrongful Death Statute, the use of a lost chance of recovery cause of action is another way to preserve damages when a strict wrongful death case may not otherwise be available. A cause of action is recognized for lost chance of recovery in medical negligence cases in which the chance of recovery lost because of medical malpractice is sizable enough to be material, which is a question for a jury. Wollen v. DePaul Health Ctr., 828 S.W.2d 681, 684–85 (Mo. banc 1992); § 537.020.1, RSMo 2000. In Wollen, the Court found there to be three possibilities with respect to proof of causation:

1. Circumstances that could amount to “but for” causation, when a cure works in an overwhelming majority of cases

2. When there is no known cure and medical science can only, at best, extend a patient’s life for a...