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The difference
between wrongful death law in Missouri and Kansas can be a source
of difficulty. This article addresses two of the many substantive
areas of difference, the proper party to bring the action, and
the statute of limitations.
Proper Plaintiffs
in Kansas
Under the Kansas statutes, two separate
and distinct causes of action arise when death results from negligence
- a survival action, K.S.A. § 60-1801 (1994), and a wrongful death
action, K.S.A. § 60-1901 (1994). Scheuler v. Aamco Transmissions,
Inc., 1 Kan. App.2d 525 (Kan. Ct. App. 1977). A survival action
is brought to recover damages on behalf of the decedent's estate
for injuries suffered by the decedent prior to death. The survival
action must be brought by the administrator of the decedent's
estate. K.S.A.§ 60-1801.
A wrongful death action is brought to recover damages "for the
exclusive benefit of all of the heirs who have sustained a loss
regardless of whether they all join or intervene." K.S.A. § 60-1902.
The term "heir" refers to "one who takes by intestate succession
under the Kansas statutes." Baugh v. Baugh, 25 Kan. App. 2d 871
(1999). Under the Kansas intestate succession statutes, when a
Kansas decedent leaves a surviving spouse and/or children, the
decedent's parents or siblings are not heirs. Id. Monetary recovery
under the wrongful death statute is apportioned by the court to
the heirs according to the individual loss sustained. K.S.A. §
60-1905. Selection of
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the heir to bring the wrongful death action can
be important in determining jurisdiction. (See Practice Tips on
page 6.)
Proper Plaintiffs
in Missouri
In Missouri all the elements of damages are brought
in a single action by a member of one of the classes of individuals
enumerated in Mo. Rev. Stat. § 537.080 (1999). The order
of priority to determine who is a plaintiff under the Act is:
(1) spouse, children (or surviving lineal descendants of any deceased
children, natural or adopted, legitimate or illegitimate); mother
or father; (2) brother or sister or their descendants; and (3)
a plaintiff ad litem. If there is not a plaintiff in the first
priority, then a plaintiff in the second or third priority may
bring the case. The circuit court will apportion the recovery
pursuant to Mo.Rev.Stat. § 537.095.
Kansas Statute
of Limitations
In Kansas, the limitation period for a wrongful death action is
two years. K.S.A. § 60-513 (1994). The Kansas Supreme Court, however,
has held that under K.S.A. § 60-1901, a wrongful death action
is barred if the injured party could not have brought an action
for his personal injuries at the time of his death. Mason v. Gerin
Corp., 231 Kan. 718, 725 (1982). For example, if the statute of
limitations expires on a personal injury claim before a person
dies, a subsequent wrongful death action will not accrue. The
statute of limitations for the survival action pursuant to K.S.A.
§ 60-1801 is two years
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from the date of the negligence that produced
the injury, not two years from the date of death. Therefore the
statute of limitation on the survival action will often run before
the statute of limitations of the wrongful death action.
Missouri Statute
of Limitations
In Missouri, a wrongful death action must be brought
within three years from the date of the decedent's death. Mo.
Rev. Stat. § 537.100 (1988). When the decedent's death is caused
by medical negligence the three-year wrongful death statute applies
rather than the two-year medical malpractice statute of limitations.
Gramlich v. Travelers Ins. Co., 640 S.W.2d 180, 183 (Mo. Ct. App.
1982). A claim for loss of chance of survival must be brought
within two years from the date of the negligent act. Caldwell
v. Lester E. Cox Med. Cent.-South, 943 S.W.2d 5 (Mo. Ct. App.
1997).
Unlike Kansas, in Missouri an heir may bring the combined wrongful
death and survival claim even if the statute of limitations on
the decedent's personal injury claim expired before the decedent's
death. Id. Regardless of when the malpractice occurred, the wrongful
death statute of limitations runs for three years beginning from
the date of decedent's death. The heir must prove, of course,
that the malpractice caused or contributed to cause the decedent's
death. Under the Missouri approach, the surviving family of the
victim of medical negligence, whose death does not ensue until
several years later, is not deprived of a remedy.
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