HCS HB 393 -- TORT REFORM

SPONSOR:  Byrd

COMMITTEE ACTION:  Voted "do pass" by the Committee on Judiciary
by a vote of 8 to 5.

This substitute changes the laws regarding claims for damages and
the payment thereof.  In its main provisions, the substitute:

(1)  Establishes venue in all tort actions in which the cause of
action occurred in a Missouri venue that is in any county where
the plaintiff was first injured by the wrongful acts or negligent
conduct alleged in the action;

(2)  Establishes venue in all tort actions in which the cause of
action occurred outside Missouri:

(a)  For corporate defendants, in any county where the registered
agent is located or, if the plaintiff's principal place of
residence was in the state of Missouri when the plaintiff was
first injured, in any county containing the plaintiff's principal
place of residence on the date the plaintiff was first injured;
and

(b)  For individual defendants, in any county of the defendant's
principal place of residence in Missouri or, if the plaintiff's
principal place of residence was in Missouri when the plaintiff
was first injured, in any county containing the plaintiff's
principal place of residence on the date the plaintiff was first
injured;

(3)  Specifies that in wrongful death actions the plaintiff is
considered first injured where the decedent was first injured by
the wrongful acts or negligent conduct alleged in the action;

(4)  Specifies that in a spouse's claim for loss of consortium
the plaintiff claiming consortium is considered first injured
where the other spouse was first injured by the wrongful acts or
negligent conduct alleged in the action;

(5)  Specifies that the court must transfer venue to the county
unanimously chosen by the parties if all parties agree in writing
to a change of venue.  If parties are added after the date of
transfer and they do not consent to the transfer, the cause of
action will be transferred to a county in which venue is
otherwise appropriate;

(6)  Requires prejudgment interest to be calculated 90 days after
the demand or offer is received by certified mail, return receipt
requested.  The demand or offer must be in writing, be
accompanied by an affidavit from the claimant describing 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;

(7)  Specifies that claims for prejudgment and post-judgment
interest in tort actions are calculated at an interest rate that
is equal to the intended Federal Funds Rate plus 3% for
prejudgment interest and 5% for post-judgment interest;

(8)  Allows parties to introduce evidence of the value of medical
treatment rendered to a party that was reasonable, necessary, and
a proximate result of the negligence of any party.  There is a
rebuttable presumption that the dollar amount necessary to
satisfy the financial obligation to the health care provider
represents the value of the treatment rendered.  The court can
determine, outside the hearing of the jury, the value of medical
treatment rendered based on additional evidence;

(9)  Defines "punitive damage award" to include an award for
punitive or exemplary damages as well as an award for aggravating
circumstances;

(10)  Allows discovery of a defendant's assets only after the
trial court finds that the plaintiff will have a submissible case
for punitive damages;

(11)  Limits an award for punitive damages to the greater of
$250,000 or three times the net amount of the judgment awarded to
the plaintiff against the defendant;

(12)  Eliminates joint and several liability and specifies that
the liability of each defendant is several only and not joint
unless otherwise provided in actions in which there is a count
alleging personal injury, emotional distress, property damage, or
wrongful death and claims for improper health care.  A party is
responsible for the fault of another person or for payment of the
proportionate share of another person if the other person was
acting as an employee of the party or if the party's liability
for fault of another arises out of a duty created by the Federal
Employers' Liability Act;

(13)  Includes long-term care facilities licensed under Chapter
198, RSMo, and manufacturers, wholesalers, or licensed
distributors of drugs or devices approved by the federal Food and
Drug Administration in the definition of "health care provider."
Exemplary damages and damages for aggravating circumstances are
included in the definition of "punitive damages";

(14)  Lowers the cap on non-economic damages for all plaintiffs
to $250,000, irrespective of the number of defendants;

(15)  Requires future medical payments to be made in an amount
according to a schedule determined by the payee's life
expectancy.  The court must apply interest on future payments at
an interest rate equal to the average auction price of a 52-week
United States Treasury bill;

(16)  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 that caused the plaintiff's damages.
Currently, the court gives discretion as to whether or not to
dismiss a claim under these circumstances;

(17)  Allows a defendant to file a motion 120 days after the
filing of the petition asking the court to examine the opinion of
the health care provider.  If the opinion fails to meet the
requirements specified in the substitute, the court must conduct
a hearing within 30 days to determine whether there is probable
cause to believe that one or more qualified and competent health
care providers will testify that the plaintiff was injured
because of the medical negligence of the defendant.  If the court
finds no probable cause, the court can dismiss the petition and
hold the plaintiff responsible for the defendant's reasonable
attorney fees and costs;

(18)  Prohibits statements, writings, or benevolent gestures
expressing sympathy made to the person or the family from being
admitted into evidence;

(19)  Specifies, for purposes of determining venue, that in any
action against a health care provider for damages for personal
injury or death arising out of the rendering of or failure to
render health care services, the plaintiff will be considered
injured by the health care provider in the county where the
plaintiff was first examined for the medical condition at issue
in the case;

(20)  Limits the amount of a supersedeas bond to $25 million in
all cases in which there is a count alleging a tort;

(21)  Specifies that costs that may be assessed in civil actions
include reasonable fees for travel, expert witnesses,
videotaping, and photocopying.  Parties are allowed to make a
post-trial challenge as to the reasonableness and necessity of
the fees;

(22)  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;

(23)  Specifies that the judge will transfer the case to a proper
forum if a plaintiff or defendant is added or removed prior to
trial which would alter the determination of venue if originally
added or removed; and

(24)  Specifies that the provisions of the bill, except for
Section 512.099, apply to all causes of action filed after August
28, 2005.

FISCAL NOTE:  No impact on General Revenue Fund in FY 2006, FY
2007, and FY 2008.  Estimated Effect on Other State Funds of a
Cost of Unknown to an Income of Unknown in FY 2006, FY 2007, and
FY 2008.

PROPONENTS:  Supporters say that doctors are leaving the state
and new doctors are declining offers to come to Missouri because
of medical malpractice insurance rates.  Doctors practice
defensive medicine to avoid malpractice claims, but doing so
increases the cost of health care.  Some doctors are reluctant to
consult with other doctors over the telephone because of concerns
about malpractice lawsuits.  Others have stopped seeing patients
or doing certain procedures because of the exposure to liability.
The current system is causing disruptions in physician-patient
relationships and limiting patients' access to care.  Caps on
non-economic damages will encourage more insurers to write
policies in Missouri.  The bill is a step in lowering costs for
doctors to practice medicine in Missouri.

Testifying for the bill were Representative Byrd; Kansas City
Metro Medical Society; Missouri State Medical Association; Dr.
Ellen Nicholls; Dr. Thomas Tryon; Missouri Academy of Family
Physicians; Missouri Association of Osteopathic Physicians and
Surgeons; Medical Assurance, Incorporated; St. Louis Metropolitan
Medical Society; Missouri Chamber of Commerce and Industry;
Missouri Railroad Association; Associated Industries of Missouri;
Missouri Retailers Association; Missouri State Chiropractors
Association; Eastern Missouri Psychiatric Society; American
Consulting Engineers Council of Missouri; Missouri Hospital
Association; St. Louis Regional Commerce and Growth Association;
Missouri Association of Homes for the Aging; National Federation
of Independent Businesses - Missouri; Missouri Pediatric Medical
Association; St. Louis Area Business Health Coalition;
Mid-American Lumbermen; Southwestern Association, Farm Equipment
and Hardware Dealers; Dr. Edward Higgins, Jr.; Alliance of
Automobile Manufacturers; Missouri Ag Industries Council,
Incorporated; Greater Kansas City Chamber of Commerce; and Blue
Cross and Blue Shield of Missouri - Healthlink, Incorporated.

OPPONENTS:  Those who oppose the bill say that judgments in
medical malpractice cases are the only way to punish bad doctors.
People with meritorious claims should receive fair compensation
for their injuries.  Legislation should focus on limiting
frivolous claims.  The cap on non-economic damages will be a
disincentive to a settlement for insurance companies.  The caps
on damages don't take into account the egregiousness of the abuse
and neglect that can happen in nursing homes.  Punitive damages
are intended to punish the defendant, and there are already
restrictions on punitive damages in Missouri.  The venue
provisions limit where an injured plaintiff can bring suit.

Testifying against the bill were Representative Schneider; Paul
Passanante; Sylvia Rinebold; Thomas Stewart; Chanda Graves;
George Wisdom; Andy Johnson; Angie Johnson; Gloria Brown; Mark
Brown; Daniel Ryan; Marlene Barron; Delmer Brown; Lawrence
Jenkins; Terry Mobley; Wayne Gross; David Terry; Gene Napier;
Missouri Association of Trial Attorneys; Missouri Republican
Attorneys for Civil Justice; Brotherhood of Locomotive Engineers
and Trainmen; United Transportation Union; and George Cook.

Amy Woods, Senior Legislative Analyst

Missouri House of Representatives
93rd General Assembly, 1st Regular Session
Last Updated August 25, 2005 at 1:19 pm