Failure to Diagnose Tumor Sounds in Medical Malpractice, Not Wrongful Death

A man sought medical attention after experiencing numbness, blurred vision, and headaches. He underwent a magnetic resonance imaging (MRI) procedure. A doctor reviewed the MRI but made no diagnosis.


Nine weeks later, the man arrived at a hospital in an altered mental state. He underwent a CT scan of his brain. The same doctor reviewed the results, but this time he diagnosed him with a brain tumor that was both terminal and incurable. Despite immediate surgery, the man died of this tumor under four months later.


The man’s survivors brought a wrongful death action against the doctor for negligent failure to diagnose the incurable, terminal brain tumor. The survivors presented evidence that—even though the man certainly would have died of his brain tumor with or without the doctor’s alleged negligence—he would not have died so soon had the brain tumor been diagnosed following the initial MRI. His treating oncologist testified that the tumor was incurable when it was found and it would have been incurable at the time of the original MRI however it was more likely than not that if the tumor had been discovered earlier the man would have lived an additional six months on average.


The doctor moved for summary judgment on the ground that the survivors could not establish the doctor’s negligence caused the man’s death as required by the wrongful death statute, section 537.080.1. The Circuit Court of Marion County granted the doctor’s motion for summary judgment and dismissed the claim.


The Supreme Court of Missouri reversed. The court held that although the doctor’s negligence was not actionable under the wrongful death statute, section 537.080, it was actionable as a medical malpractice action that survives under section 537.020.


Although the doctor’s negligence was not actionable under the wrongful death statute, it was actionable as a medical malpractice action. The medical malpractice statute, section 537.020, provides: “Causes of action for personal injuries, other than those resulting in death, whether such injuries be to the health or to the person of the injured party, shall not abate by reason of his death.” The doctor’s alleged negligence did not cause the man’s death, but it surely injured him by depriving him of the opportunity to delay his death for up to six months. The man would have been able to sue the doctor for this negligence while he lived, and his personal representative could bring that action under section 537.020 after his death.


The Supreme Court of Missouri reversed the trial court’s dismissal of the wrongful death claim.


See: Mickels v. Danrad, 2016 WL 1580268 (Mo., April 19, 2016) (not designated for publication).