SB 271 - This act modifies provisions relating to tort reform.SEAT BELT VIOLATIONS - Failure of a plaintiff to wear a seat belt may reduce the amount of the plaintiff's recovery by 50% of the damages after reduction for comparative negligence. Currently, the amount may only be reduced by 1%.
SUITS AGAINST NONPROFIT CORPORATIONS - 355.176 - The act repeals and reenacts section 355.176 regarding services of process in suits against nonprofit corporations.
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 award prejudgement interest if the conditions of this section are met. Claims for prejudgement interest in tort actions shall be calculated at an interest rate tied to the Federal Funds Rate, as established by the Federal Reserve Board, plus three percent. Claims for post-judgement interest in tort actions shall be calculated at an interest rate tied to the Federal Funds Rate plus five percent. If a claimant fails to file suit in circuit court within 30 days after the expiration of 90 days of the demand being open, then the court shall not award prejudgement interest to the claimant.
COLLATERAL SOURCE EVIDENCE - Section 490.715 - Parties may introduce evidence of amounts actually paid for medical treatment, however no party may introduce evidence of billing for an amount in excess of the amount actually paid for medical treatment.
VENUE - Section 508.010 - Where the cause of action accrues in Missouri, venue in all tort actions, including torts for improper healthcare, shall only be in any county within the judicial circuit where cause of action accrued. The judicial circuit where the cause of action accrued is defined to be the judicial circuit where the plaintiff was first injured by the wrongful acts of the defendant. If the cause did not accrue in Missouri, then venue depends on whether there is an individual or corporate defendant. For an individual defendant, venue shall be in any county within the judicial circuit where an individual defendant resides or if there are one or two plaintiffs and either resided in Missouri on the date the cause of action accrued, any county within the judicial circuit where one of the plaintiffs resided on the date the cause of action accrued. For a corporate defendant, venue shall be in either any county within the judicial circuit where the registered agent is located or, if there are one or two plaintiffs and either resided in Missouri on the date the cause of action accrued, any county within the judicial circuit where one of the plaintiffs resided on the date the cause of action accrued. Motions to dismiss or to transfer based on a claim of improper venue shall be granted if not denied within 90 days of filing, unless the time period is waived by all parties.
In a wrongful death action, the plaintiff is considered first injured where the decedent was first injured by the wrongful acts of the defendant. These venue provisions will apply to both for-profit and non-profit entities. If the parties agree to a change in venue, then the court shall transfer to such county, provided that if other parties are added who do not consent, then the venue shall be transferred to an appropriate county. In medical malpractice tort actions, the plaintiff shall be considered injured in the county where the plaintiff was first examined for the medical condition at issue. (538.232). The act also repeals sections 508.040 (venue for corporations), 508.070 (venue for motor carriers) and 508.120 (disqualification of judge and change of venue).
PUNITIVE DAMAGES - Sections 510.263 and 510.265 - The section is made applicable to tort actions for improper health care. No award of punitive damages shall exceed the greater of $250,000 or three times the net amount of the judgment against the defendant. "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.
SUPERSEDEAS BONDS - Section 512.099 - This section limits the amount of a supersedeas bond to $25 million in all cases in which there is a count alleging a tort.
COSTS - Section 514.060 - Costs that may be assessed in civil actions include fees for travel, expert witnesses, videotaping and photocopying.
STATUTE OF LIMITATIONS IN ACTIONS AGAINST HEALTH CARE PROVIDERS - Section 516.105 - Currently, in no event may a suit be commenced after ten years from a minor's 20th birthday. The act changes it to the minor's 18th birthday.
PEER REVIEW COMMITTEES (Section 537.035) - Authorizes the appointment of a peer review committee by the board of trustees or chief executive officer of a long-term care facility licensed under chapter 198, RSMo. This addition has the effect of making records of nursing home quality assessment and assurance committees privileged and inadmissible in court.
JOINT AND SEVERAL LIABILITY - Sections 537.067 and 538.230 - The act eliminates joint and several liability. In tort actions, a defendant is responsible for their percentage of fault.
WRONGFUL DEATH ACTIONS - Section 537.090 - For purposes of determining damages, if the deceased was at least 50% responsible for the care of a minor or disabled person, then there shall be a rebuttable presumption that the value of the care provided is equal to 2/3 of the state average weekly wage.
DEFINITION OF "HEALTH CARE PROVIDER" - Section 538.205 - Includes long term care facilities licensed under chapter 198, RSMo and manufacturers, wholesaler and distributors of Food and Drug Administration-approved drugs. The definition of "punitive damages" shall include exemplary damages and damages for aggravating circumstances.
MEDICAL MALPRACTICE NONECONOMIC DAMAGES CAP - Section 538.210 - Cap on noneconomic damages for all plaintiffs is lowered from its current inflation-adjusted cap of $565,000 (adjusted from its base amount of $350,000 in 1986) to $250,000. There shall be no inflation adjustment. No plaintiff shall recover more than $400,000 regardless of the number of defendants. 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. The cap applies to any person or entity that is a defendant in a lawsuit brought against a health care provider or that arises out of the rendering of health care services. 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. Any spouse claiming loss of consortium shall be considered the same plaintiff as their spouse. All persons and entities asserting a wrongful death claim are considered one plaintiff.
PERIODIC PAYMENTS - Section 538.220 - Requires future medical payments to made in an amount according to a schedule determined by the payee's life expectancy. The court shall apply interest on future payments at an interest rate tied to the average auction price of a 52-week United States Treasury bill.
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 name and address of the health provider offering the opinion. The health care provider offering the opinion must be licensed in the same profession and either practicing or within five year of retirement of practice in substantially the same specialty as the defendant. The time for filing the affidavit can extended for up to 90 days.
BENEVOLENT GESTURES - Section 538.229 - Prohibits statements, writings or benevolent gestures expressing sympathy made to the person or to the family of the person from being admitted into evidence.
SEVERABILITY - Section 1 - Adds severability clause.
EFFECTIVE DATE OF ACT - Section 2 - Provides that the act shall apply to all cases filed after August 28, 2005.
CHANGE OF VENUE - Section 3 - If a plaintiff or defendant is added or removed prior to trial which would, if originally added or removed to the initial petition, alter the determination of venue, then the judge shall transfer the case to a proper forum.
This act is similar to and HB 393 (2005) and TAT/SS/SCS/HS/HCS/HB 1304 (2004).
JIM ERTLE