SB 1094 - This act modifies provisions relating to tort reform.

INTEREST ON JUDGEMENTS (Section 408.040) - Prejudgement interest is calculated 90 days after the demand or offer is received by certified mail return receipt. Currently, it is calculated 60 days after the demand or offer is made. Such demands and offers must be in writing; accompanied by an affidavit from the claimant covering the legal theory and damages claimed; list the medical providers of the claimant, include other medical information and contain authorization to allow the other party to obtain employment and medical records; and be left open for 90 days. The trial court shall determine whether prejudgement interest is awarded. Claims for prejudgement and post-judgment interest in tort actions shall be calculated at a interest rate tied to the auction price for 52 week U.S. Treasury bills.

EXPERT WITNESS TESTIMONY (Section 490.065) - The act adopts language contained in Federal Rules of Evidence that allows expert testimony if: the testimony is based upon sufficient facts or data; is the product of reliable principles and methods; and the witness has applied the principles and methods reliably to the facts of the case.

VENUE (Section 508.010) - Requires that venue in all tort actions, including torts for improper healthcare, shall only be in county where cause of action accrued. If cause did not accrue in Missouri, then venue shall be in the county where the defendant resides. The residence of a corporation is whether the registered agent of the corporation maintains an office. Venue in suits against not-for-profit corporations shall be in the county where the cause of action accrues or the county where the office of the registered agent is maintained. The act also repeals sections 508.040 (venue for corporations) and 508.070 (venue for motor carriers).

PUNITIVE DAMAGES (Section 510.263) - A jury must find that a defendant's actions or omissions were willful, wanton or malicious by clear and convincing evidence in order to have a submissible case for punitive damages. "Punitive damage award" is defined to include an award for punitive or exemplary damages as well as an award for aggravating circumstances. Discovery of a defendant's assets only can occur after the trial court finds the plaintiff will have a submissible case for punitive damages.

STATUTE OF LIMITATIONS IN ACTIONS AGAINST HEALTH CARE PROVIDERS - (Section 516.105) - A minor less than six years of age has until his 8th birthday to bring cause of action. Currently, a person less than 18 years of age has until the age of 20 to bring the action.

JOINT AND SEVERAL LIABILITY (Section 537.067) - Repeals the current doctrine of joint and several liability and limits liability in all tort actions, including tort actions based on improper health care, to the percentage of fault attributed to each defendant by the trier of fact. The act repeals Section 538.230 which created a separate comparative fault statute for tort actions involving improper health care.

MEDIATION (Section 537.072) - Requires mediation in all tort cases except where judge finds no chance of success.

DEFINITION OF "HEALTH CARE PROVIDER" (Section 538.205) - Includes long term care facilities licensed under Chapter 198, RSMo, professional corporations, business corporations and any other person or entity that provides health care services through one or more employees possessing a license or certificate.

MEDICAL MALPRACTICE NONECONOMIC DAMAGES CAP (Section 538.210) - Cap on noneconomic damages for all plaintiffs is lowered from $350,000 to $250,000 per cause of action and provision that subjects cap to periodic inflation increases is removed. This section also removes the words "per occurrence" to ensure a single cap and not multiple caps per incidents of medical malpractice as held by the court in Scott v. SSM Healthcare. No hospital or health care provider shall be liable for actions of entity or person who is not an employee of such hospital or health care provider. All persons and entities asserting a wrongful death claim are considered one plaintiff.

DAMAGE CAPS FOR TRAUMA CARE (Section 538.213) - Limits civil damages against certain physicians, dentists, hospitals and hospital employees to $150,000 in claims arising out of emergency room care. The limit does not apply to grossly negligent or reckless, willful or wanton conduct.

AFFIDAVIT OF MERIT (Section 538.225) - Requires a court to dismiss any medical malpractice claim where the plaintiff fails to file an affidavit stating that he or she has obtained the written opinion of a legally qualified health care provider which states that the defendant failed to use reasonable care and such care caused plaintiff's damages. Currently, it is within the court's discretion to dismiss the case. The affidavit must state the names and addresses of all health care providers offering the opinion. The expert must be licensed in the same profession and substantially the same specialty as the defendant. The time for filing the affidavit can extended for up to 90 days.

BENEVOLENT GESTURES (Section 538.227) - Prohibits statements, writings or benevolent gestures expressing sympathy made to the person or to the family of the person from being admitted into evidence.

PEER REVIEW RECORDS (Section 538.301) - Records of certain quality assessment and assurance committees are confidential and not subject to legal compulsion nor use in any proceeding. Persons are not liable for good faith decisions regarding such committees. Persons cannot be compelled to testify regarding such documents.

SEVERABILITY (Section 1) - Adds severability clause.

EFFECTIVE DATE OF ACT (Section 2) - Provides that the act shall only apply to cases filed after August 28, 2004.

This act is similar to SS/SCS/SB 280 (2003).
JIM ERTLE