HCS HB 273 -- TORT REFORM

SPONSOR:  Byrd

COMMITTEE ACTION:  Voted "do pass" by the Committee on Judiciary
by a vote of 10 to 0.

This substitute makes various changes to laws affecting claims
for damages for personal injuries.  In its main provisions, the
substitute:

(1)  Clarifies that the maximum liability of the state Legal
Expense Fund to any one claimant will be $500,000 (Section
105.711, RSMo);

(2)  Extends the immunity from civil liability currently granted
to landowners adjoining the Katy Trail State Park and certain
municipal and county trails to landowners adjoining all publicly
owned trails dedicated for recreation (Section 258.100);

(3)  Increases from 1% to 10% the amount by which failure to wear
a safety belt can reduce a plaintiff's damage award (Section
307.178);

(4)  Repeals and reenacts a section, ruled unconstitutional as
originally passed, which provides for liens for health
practitioners who provide medical services to patients injured by
tort-feasors (Section 430.225);

(5)  Requires that venue in all tort actions be only in the
county in which the cause of action accrued.  If the cause of
action did not accrue in Missouri, venue will be determined as if
it were not a tort action (Section 508.010);

(6)  Requires that venue in suits against corporations be
commenced only in the county where the cause of action accrued
(Section 508.040);

(7)  Allows civil defendants to change venue to an appropriate
venue if a new defendant is added which would have made the
current venue inappropriate had the later-added defendant been
named initially (Section 508.120);

(8)  Requires clear and convincing evidence that a defendant's
actions were willful, wanton, or malicious in order to award
punitive damages and allows discovery as to a defendant's assets
only after a finding by the court that the plaintiff has a
submissible case on punitive damages (Section 510.263);

(9)  Provides that an order certifying a class in a class action
lawsuit is a final, appealable judgment (Section 512.023);

(10)  Provides that in appellate cases involving monetary
judgments in excess of $3 million, a $3 million supersedeas bond
will be sufficient to stay execution, with the remainder of the
judgment being an immediate but nonexecutable lien upon the
appellant's assets (Section 512.080);

(11)  Defines "costs" to mean the total of fees, miscellaneous
charges, and surcharges (defined in Section 488.010), as well as
reasonable charges and fees of endorsed expert witnesses and
court reporters, and reasonable expenses for travel, record
retrieval, photocopying, long distance telephone calls, exhibit
preparation, and videotaped depositions (Section 514.035);

(12)  Requires mediation in all tort actions in which claimed
damages exceed $25,000, unless the court finds that mediation
would have no chance of success.  Awards costs to the prevailing
party, defined as the plaintiff if the plaintiff's net recovery
exceeds his or her last position at mediation, and defined as the
defendant if the plaintiff's net recovery is less than the
defendant's last position at mediation.  If plaintiff's net
recovery is between the parties' last positions at mediation,
neither party prevails nor pays the costs of the other party
(Section 514.060);

(13)  Reduces the statute of limitations for claims by minors
less than 18 years of age against physicians, hospitals,
dentists, and others from the minor's twentieth birthday to two
years from the date of occurrence of the alleged negligence
(Section 516.105);

(14)  Limits to five years the extension of time to file a cause
of action once the disabilities of minority or mental incapacity
are removed (Section 516.170);

(15)  Eliminates defendants' joint and several liability in tort
actions unless a principal-agent relationship exists between the
defendants (Section 537.067);

(16)  Gives immunity to outfitters of paddlesport activities for
injuries or death to participants due to the inherent risks of
paddlesport activities.  Outfitters are not immune from liability
arising out of an employer-employee relationship.  Outfitters are
also not immune from liability when an outfitter acts
intentionally or negligently, provides unsafe equipment or
watercraft, fails to provide a personal flotation device, or
fails to exercise ordinary care.  All outfitters must post and
maintain a warning in a clearly visible location and must include
the warning in all contracts with participants (Section 537.327);

(17)  Requires an affidavit from a similarly-licensed
professional supporting a cause of action for non-medical claims
of professional negligence (Section 537.530);

(18)  Limits attorney contingency fees in tort actions to 33% of
the first $500,000, 28% of the next $500,000, and 15% of all
damages recovered in excess of $1 million (Section 537.767);

(19)  Limits attorney fees in class action lawsuits to 10% of the
value of the judgment or settlement "actually collected" (as
defined therein) by the members of the class (Section 537.768);

(20)  Prohibits the Attorney General or any state agency from
entering into any contingency fee agreement or any agreement
providing any incentive bonus with any attorney regarding any
claim relating in any manner to a tort action (Section 537.770);

(21)  Adds long-term care facilities licensed pursuant to Chapter
198 (Convalescent, Nursing, and Boarding Homes) to the definition
of "health care provider" as used in Chapter 538 (Tort Actions
Based on Improper Health Care) (Section 538.205);

(22)  Specifies that all individuals or entities whose liability
is based solely upon an act or omission of an agent, servant, or
employee be considered the same defendant as the agent, servant,
or employee and specifies that all individuals and entities
asserting a wrongful death claim be considered one plaintiff.
The substitute also eliminates the requirement that the award
limitations for noneconomic damages be adjusted annually for
inflation and removes the "per occurrence" language in order to
overrule a recent Missouri Supreme Court decision (Section
538.210).  There is an emergency clause for this section;

(23)  Limits civil damages recoverable against certain
physicians, dentists, hospitals, and others to $150,000 for care
or assistance necessitated by traumatic injury and rendered in a
designated trauma center (Section 538.213);

(24)  Requires that the health care provider affidavit required
in medical professional negligence cases include the name and
address of the affiant, requires that the opinion upon which the
affidavit is based be rendered by a physician who is
board-certified the same as the defendant, and allows an
extension of time not to exceed an additional 90 days for filing
the affidavit (Section 538.225);

(25)  Prohibits statements, writings, or benevolent gestures
expressing sympathy from being admissible as evidence of an
admission of liability in a civil action (Section 538.226);

(26)  Provides certain records, written proceedings, or documents
produced by or through the activities of any state or federal
agency from being admissible in certain civil, criminal, and
administrative proceedings against facilities licensed pursuant
to Chapter 198 (Convalescent, Nursing, and Boarding Homes)
(Section 538.301); and

(27)  Authorizes the filing of a "miscellaneous" case for the
purpose of securing copies of health care records, details what
the petition should and should not contain, and provides that
filing a miscellaneous case tolls the statute of limitations for
medical malpractice for 120 days (Section 1).

There is an emergency clause for Section 538.210, which clarifies
the definition of "defendant" in actions against health care
providers and tightens the noneconomic damage award limitation.

FISCAL NOTE:  Estimated Net Savings to General Revenue Fund of
$917,743 to Unknown in FY 2004, $945,275 to Unknown in FY 2005,
and $973,634 to Unknown in FY 2006.  Estimated Net Effect on
State Legal Expense Fund of $0 in FY 2004, FY 2005, and FY 2006.
Estimated Net Savings to Highway Fund of Up to $1,000,000 in FY
2004, FY 2005, and FY 2006.

PROPONENTS:  Supporters say that tort reform is necessary to help
curb the increasing medical malpractice insurance rates or
Missouri will lose too many doctors.  Also, venue laws need to be
changed to disallow venue-shopping, especially in suits against
corporations.

Testifying for the bill were Representative Byrd; Dr. Robert
Ferris, Women's Health Obstetrics; Dr. Greg Walker; Dr. Debbi
McCaul, Missouri Academy of Family Physicians; and Dr. Gordon
Goldman, St. Louis Metropolitan Medical Society.

OPPONENTS:  Those who oppose the bill say that capping damage
awards to tort victims will not lower doctors' medical
malpractice insurance premiums, and current venue statutes in
Missouri work well.

Testifying against the bill were Missouri Association of Trial
Attorneys; Robert Wallingford; Patricia Neal; and Burt Newman.

Julie Jinkens McNitt, Legislative Analyst

Missouri House of Representatives
Last Updated July 25, 2003 at 10:11 am