CCS SS SCS HCS HB 393 -- TORT REFORM

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

(1)  Establishes venue in the county where the plaintiff was
first injured by the wrongful acts or negligent conduct alleged
in all tort actions in which the plaintiff was first injured in
Missouri;

(2)  Establishes venue in all tort actions in which the plaintiff
was first injured 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 Missouri when the plaintiff was first injured,
in the county of 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 the 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 act 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 the
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 and be
accompanied by an affidavit from the claimant describing the
nature of the claim and the damages claimed.  For wrongful death,
personal injury, and bodily injury claims, the demand letter must
also list the medical providers of the claimant and include
copies of all reasonably available medical bills, other medical
information, and authorization to allow the other party to obtain
employment and medical records.  The demand must 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 may
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
$500,000 or five times the net amount of the judgment awarded to
the plaintiff against the defendant.  The limits on punitive
damages do not apply to certain causes of action relating to
housing discrimination;

(12)  Allows joint and several liability if a defendant is found
to be 51% or more at fault.  The defendant is jointly and
severally liable for the amount of the judgment rendered against
the defendant.  If a defendant is found to be less than 51% at
fault, the defendant is only responsible for the percentage of
the judgment he or she is determined to be responsible for by the
trier of fact.  A party is responsible for the fault of another
defendant or for payment of the proportionate share of another
defendant if the other defendant was an employee of the party or
if the party's liability for the fault of another arises out of
the duty created by the Federal Employers' Liability Act.
Defendants are only severally liable for the percentage of
punitive damages that are attributed to the defendant by the
trier of fact.  In all tort actions, parties are prohibited from
disclosing to the trier of fact the impact of the provisions
relating to joint and several liability;

(13)  Includes long-term care facilities licensed under Chapter
198, RSMo, in the definition of "health care provider."
Exemplary damages and damages for aggravating circumstances are
included in the definition of "punitive damages";

(14)  Specifies that the cap on non-economic damages for all
plaintiffs is $350,000, irrespective of the number of defendants.
There is no inflation adjustment on the non-economic damages cap;

(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.  The parties are not prohibited from
agreeing to settle and resolve the claim for future damages; and
if an agreement is reached, the future payment schedule does not
apply;

(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 180 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 bill, 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 may dismiss the petition and
hold the plaintiff responsible for the defendant's reasonable
attorney fees and costs;

(18)  Specifies that physicians who provide medical treatment to
patients in city, county, or nonprofit health clinics that
provide free health care service are not liable for civil damages
for acts or omissions, unless the damages were caused by gross
negligence or by willful or wanton acts or omissions of the
physician;

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

(20)  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 only in the county where the
plaintiff first received treatment by a defendant for the medical
condition at issue in the case;

(21)  Limits the amount of a supersedeas bond to $50 million in
all cases in which there is a count alleging a tort;

(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 disclosure of interviews, memoranda,
proceedings, findings, or deliberations of a peer review
committee does not waive or have an effect on the
confidentiality, nondiscoverability, or nonadmissibility of the
documents;

(24)  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;

(25)  Specifies that for purposes of determining damages, if the
deceased was not employed full-time and was at least 50%
responsible for the care of one or more minors, disabled persons,
or persons over the age of 65, there is a rebuttable presumption
that the value of the care provided is equal to 110% of the state
average weekly wage;

(26)  Specifies that actions against physicians and other health
care providers for malpractice must be brought within two years
of a minor's eighteenth birthday.  Currently, the statute of
limitations is 10 years from the minor's twentieth birthday; and

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

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