NAVIGATING PERSONAL INJURY CASES IN A POST-TORT REFORM WORLD

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1 NAVIGATING PERSONAL INJURY CASES IN A POST-TORT REFORM WORLD Michael J. Mohlman Smith Coonrod Mohlman, LLC 7001 W. 79th Street Overland Park, KS Telephone: (913) ; Facsimile: (913) In 2005, the Missouri legislature made significant changes to the existing structure of Missouri tort law. What follows is an overview of how lawyers are responding to some of the changes, and to the extent that issues have been decided, how the courts are interpreting the new statutes. I. VENUE A. Section , R.S.Mo Supp As used in this section, "principal place of residence" shall mean the county which is the main place where an individual resides in the State of Missouri. There shall be a rebuttable presumption that the county of voter registration at the time of injury is the principal place of residence. There shall be only one principal place of residence. 2. In all actions in which there is no count alleging a tort, venue shall be determined as follows: (1) When the defendant is a resident of the state, either in the county within which the defendant resides, or in the county within which the plaintiff resides, and the defendant may be found; (2) When there are several defendants, and they reside in different counties, the suit may be brought in any such county; (3) When there are several defendants, some residents and others nonresidents of the state, suit may be brought in any county in this state in which any defendant resides; (4) When all the defendants are nonresidents of the state, suit may be brought in any county in this state. 3. The term "tort" shall include claims based upon improper health care, under the provisions of chapter 538, RSMo. 4. Notwithstanding any other provision of law, in all actions in which there is any count alleging a tort and in which the plaintiff was first injured in the State of Missouri, venue shall be in the county where the plaintiff was first injured by the wrongful acts or negligent 1

2 conduct alleged in the action. 5. Notwithstanding any other provision of law, in all actions in which there is any count alleging a tort and in which the plaintiff was first injured outside the State of Missouri, venue shall be determined as follows: (1) If the defendant is a corporation, then venue shall be in any county where a defendant corporation's registered agent is located or, if the plaintiff's principal place of residence was in the State of Missouri on the date the plaintiff was first injured, then venue may be in the county of the plaintiff's principal place of residence on the date the plaintiff was first injured; (2) If the defendant is an individual, then venue shall be in any county of the individual defendant's principal place of residence in the State of Missouri or, if the plaintiff's principal place of residence was in the State of Missouri on the date the plaintiff was first injured, then venue may be in the county containing the plaintiff's principal place of residence on the date the plaintiff was first injured. 6. Any action, in which any county shall be a plaintiff, may be commenced and prosecuted to final judgment in the county in which the defendant or defendants reside, or in the county suing and where the defendants, or one of them, may be found. 7. In all actions, process shall be issued by the court in which the action is filed and process may be served in any county within the state. 8. In any action for defamation or for invasion of privacy, the plaintiff shall be considered first injured in the county in which the defamation or invasion was first published. 9. In all actions, venue shall be determined as of the date the plaintiff was first injured. 10. All motions to dismiss or to transfer based upon a claim of improper venue shall be deemed granted if not denied within ninety days of filing of the motion unless such time period is waived in writing by all parties. 11. In a wrongful death action, the plaintiff shall be considered first injured where the decedent was first injured by the wrongful acts or negligent conduct alleged in the action. In any spouse's claim for loss of consortium, the plaintiff claiming consortium shall be considered first injured where the other spouse was first injured by the wrongful acts or negligent conduct alleged in the action. 12. The provisions of this section shall apply irrespective of whether the defendant is a for-profit or a not-for-profit entity. 13. In any civil action, if all parties agree in writing to a change of venue, the court shall transfer venue to the county within the state unanimously chosen by the parties. If any parties are added to the cause of action after the date of said transfer who do not consent to said transfer then the cause of action shall be transferred to such county in which venue is appropriate 2

3 under this section, based upon the amended pleadings. 14. A plaintiff is considered first injured where the trauma or exposure occurred rather than where symptoms are first manifested. B. Application of new venue statute to amended petition against same parties. State ex rel. Burns v. Whittington, 219 S.W.3d 224 (Mo. 2007). In Burns, Mr. Burns filed a personal injury action in the City of St. Louis alleging exposure to benzene. Presumably venue for that action was proper in the City of St. Louis. In January 2006, while the action was still pending, Mr. Burns passed away. As a result, Mr. Burns s spouse filed an amended petition alleging wrongful death. Defendant thereafter filed a motion to transfer venue since decedent was first injured in St. Louis County, where he was exposed to the benzene. The issue was whether the amended petition was a new cause of action, since the newly enacted venue statute was made applicable to causes of action filed after August 28, The circuit court found that it did, and transferred venue. The Supreme Court held that the term cause of action means a group of operative facts giving rise to one or more bases for suing, and remains the same even if different theories of evidence may be necessary to support it. Thus, since the case was still based on the same operative facts, it was not a new cause of action, the old venue statute still applied. The court limited its holding to cases in which there was not a newly added defendant. Arguably, if there would have been a newly added defendant, the new venue statute would have applied. See, State ex rel. Linthicum v. Calvin, 57 S.W.3d 855 (Mo. 2001). C. Conflict between new venue statute and more specific old venue statute applicable to municipalities. State ex rel. City of Jennings v. Riley, WL (Mo. App. E.D. 2007) (case transferred to Supreme Court). Summary is based on appellate court s opinion. In City of Jennings, plaintiff filed suit in the City of St. Louis for the wrongful death of Maurice Harris, which was alleged to have been caused by a high speed chase that started in Jennings, but fatally ended in the City of St. Louis. Plaintiff relied on the newly enacted venue statute for venue in the City of St. Louis, and there was no real dispute that decedent was first injured in the City of St. Louis. Defendant moved to transfer venue based on Section R.S.Mo, 2000, which provided that a municipal corporation could only be sued in the county in which it was located. Although plaintiff did not respond to the venue motion, the trial court denied the same. The appellate court, relying on principles of statutory construction, held that that the more specific municipal corporation statute applied, and venue was proper in St. Louis County. The Supreme Court took transfer on May 29,

4 D. Rule and Section , R.S.Mo Supp Rule provides for an automatic change of venue for cases filed in counties having 75,000 or less inhabitants. Section , R.S.Mo, Supp. 2005, provides that the provisions of the new venue statutes shall prevail over Rule to the extent that they contradict. There is at least one case in which plaintiff filed an action in the county in which he was first injured, and then filed Rule motion that was granted by the trail court. In that case, the Supreme Court has issued a preliminary writ, and further briefing appears to be underway. E. Economic losses The first injury standard finds fairly easy application in cases involving an actual physical invasion or plaintiff s person or property. However, when the injury is of a purely economic nature, the standard becomes a bit more complicated. For instance, in a case involving professional advice given in one location about a piece of property in another location, where is plaintiff injured? Some may say in the location where the advice was given, while others would say where the property is located. Currently, there is a petition for writ of prohibition that has been filed in Supreme Court stemming from a legal malpractice claim filed in the City of St. Louis. Plaintiff contends that venue for her legal malpractice action belongs in the City of St. Louis, where her economic injury was sustained. On the other hand, defendant contends that venue is proper in St. Louis County where his office is located, and where the negligence, if any, occurred. F. Court filings Every year the Missouri Judiciary publishes an Annual Report Supplement detailing the tort cases that are filed in each circuit court during the previous fiscal year. Below, is a summary of the reported filings from fiscal year ending June 30, 2002 through fiscal year ending June 30, At the time these materials were prepared, there were no reports available for fiscal year ending June 30, Fiscal Year Ending June, 30 St. Louis County City of St. Louis Because the fiscal year ending June 30, 2006 included the many cases filed on the eve of the tort reform effective date, the impact of the new venue statute is not fully reflected in the 4

5 fiscal year 2006 filing numbers. However, the numbers reflect that tort reform resulted in a substantial increase in the total number of cases filed in St. Louis County and the City of St. Louis, and the numbers reflect that there was a 33% increase in the number of cases filed in St. Louis County. II. JOINT AND SEVERAL LIABILITY A. Section , R.S.Mo Supp In all tort actions for damages, if a defendant is found to bear fifty-one percent or more of fault, then such defendant shall be jointly and severally liable for the amount of the judgment rendered against the defendants. If a defendant is found to bear less than fifty-one percent of fault, then the defendant shall only be responsible for the percentage of the judgment for which the defendant is determined to be responsible by the trier of fact; except that, a party is responsible for the fault of another defendant or for payment of the proportionate share of another defendant if any of the following applies: (1) The other defendant was acting as an employee of the party; (2) The party's liability for the fault of another person arises out of a duty created by the federal Employers' Liability Act, 45 U.S.C. Section The defendants shall only be severally liable for the percentage of punitive damages for which fault is attributed to such defendant by the trier of fact. 3. In all tort actions, no party may disclose to the trier of fact the impact of this section. B. Recent trends The authors of these materials are not aware of any substantive issues that have arisen as a result of the new joint and several liability rules. Based on anecdotal observations, the new joint and several liability rules have resulted in a decrease in the number of cases being prosecuted that were only economically viable as a result of the application of the old joint and several liability rules. III. INTEREST A. Section , R.S.Mo Supp In all nontort actions, interest shall be allowed on all money due upon any judgment or order of any court from the date judgment is entered by the trial court until satisfaction be made by payment, accord or sale of property; all such judgments and orders for money upon contracts bearing more than nine percent interest shall bear the same interest borne by such contracts, and all other judgments and orders for money shall bear nine percent per annum until satisfaction made as aforesaid. 5

6 2. Notwithstanding the provisions of subsection 1 of this section, in tort actions, interest shall be allowed on all money due upon any judgment or order of any court from the date of judgment is entered by the trial court until full satisfaction. All such judgments and orders for money shall bear a per annum interest rate equal to the intended Federal Funds Rate, as established by the Federal Reserve Board, plus five percent, until full satisfaction is made. The judgment shall state the applicable interest rate, which shall not vary once entered. In tort actions, if a claimant has made a demand for payment of a claim or an offer of settlement of a claim, to the party, parties or their representatives, and to such party's liability insurer if known to the claimant, and the amount of the judgment or order exceeds the demand for payment or offer of settlement, then prejudgment interest shall be awarded, calculated from a date ninety days after the demand or offer was received, as shown by the certified mail return receipt, or from the date the demand or offer was rejected without counter offer, whichever is earlier. In order to qualify as a demand or offer pursuant to this section, such demand must: (1) Be in writing and sent by certified mail return receipt requested; and (2) Be accompanied by an affidavit of the claimant describing the nature of the claim, the nature of any injuries claimed and a general computation of any category of damages sought by the claimant with supporting documentation, if any is reasonably available; and (3) For wrongful death, personal injury, and bodily injury claims, be accompanied by a list of the names and addresses of medical providers who have provided treatment to the claimant or decedent for such injuries, copies of all reasonably available medical bills, a list of employers if the claimant is seeking damages for loss of wages or earning, and written authorizations sufficient to allow the party, its representatives, and liability insurer if known to the claimant to obtain records from all employers and medical care providers; and (4) Reference this section and be left open for ninety days. Unless the parties agree in writing to a longer period of time, if the claimant fails to file a cause of action in circuit court prior to a date one hundred twenty days after the demand or offer was received, then the court shall not award prejudgment interest to the claimant. If the claimant is a minor or incompetent or deceased, the affidavit may be signed by any person who reasonably appears to be qualified to act as next friend or conservator or personal representative. If the claim is one for wrongful death, the affidavit may be signed by any person qualified pursuant to section , RSMo, to make claim for the death. Nothing contained herein shall limit the right of a claimant, in actions other than tort actions, to recover prejudgment interest as otherwise provided by law or contract. 3. In tort actions, a judgment for prejudgment interest awarded pursuant to this subsection should bear interest at a per annum interest rate equal to the intended Federal Funds Rate, as established by the Federal Reserve Board, plus three percent. The judgment shall state the applicable interest rate, which shall not vary once entered. 6

7 B. Recent trends Theses authors are aware of no issues that have arisen as a result of the increased formality within which prejudgment interest demand letters must be drafted and sent. Based on anecdotal observations, there appears to have been a decrease in the number of prejudgment interest demand letters that are being sent. C. Pre- and Post-Judgment Interest Issues Pre- and post-judgment interest was previously limited to nine percent interest. Under the new law, the interest rates now vary and are based on the intended Federal Funds Rate. The Intended Federal Funds Rate is the interest rate at which depository institutions lend balances at the Federal Reserve to other depository institutions overnight. Beginning August 28, 2005, pre-judgment per annum (or simple) interest is the intended Federal Funds Rate plus five percent; post-judgment per annum interest is the intended Federal Funds Rate plus three percent. Evaluating Damages Under HB 393, Kurt V. Krueger and John O. Ward (2006). In order to determine the interest rate, the practitioner will have to determine what the current intended Federal Interest Rate is as published by the Federal Reserve Board on the internet site: and then add in five or three percent. It is unclear why the intended Federal Funds Rate was selected as the benchmark for pre- and post-judgment interest by the legislature. IV. COLLATERAL SOURCE A. Section , R.S.Mo Supp No evidence of collateral sources shall be admissible other than such evidence provided for in this section. 2. If prior to trial a defendant or his or her insurer or authorized representative, or any combination of them, pays all or any part of a plaintiff's special damages, the defendant may introduce evidence that some other person other than the plaintiff has paid those amounts. The evidence shall not identify any person having made such payments. 3. If a defendant introduces evidence described in subsection 2 of this section, such introduction shall constitute a waiver of any right to a credit against a judgment pursuant to section This section does not require the exclusion of evidence admissible for another proper purpose. 5. (1) Parties may introduce evidence of the value of the medical treatment rendered 7

8 to a party that was reasonable, necessary, and a proximate result of the negligence of any party. (2) In determining the value of the medical treatment rendered, there shall be a rebuttable presumption that the dollar amount necessary to satisfy the financial obligation to the health care provider represents the value of the medical treatment rendered. Upon motion of any party, the court may determine, outside the hearing of the jury, the value of the medical treatment rendered based upon additional evidence, including but not limited to: (a) The medical bills incurred by a party; (b) The amount actually paid for medical treatment rendered to a party; (c) The amount or estimate of the amount of medical bills not paid which such party is obligated to pay to any entity in the event of a recovery. Notwithstanding the foregoing, no evidence of collateral sources shall be made known to the jury in presenting the evidence of the value of the medical treatment rendered. B. Rebuttable presumption There have been no published cases on what evidence is necessary to overcome the rebuttable presumption that the value of the medical treatment rendered to plaintiff equals the dollar amount necessary to satisfy the bills, and trial judges have had differing opinions. For instance, some trial judges have taken the position that plaintiff s expert s testimony that the amounts of the medical bills are fair and reasonable is sufficient to overcome the presumption. On the other hand, some trial judges have prevented all evidence of medical bills, other than the amounts actually paid. Some trial judges have taken a compromise approach and held that an expert s testimony that his/her bills are fair and reasonable is sufficient to overcome the presumption, but only as to that expert s own bills, and not the bills of other treatment providers. At this point, until there is some direction from the higher courts, litigants must determine how their particular trial judge interprets the rebuttable presumption, and develop their evidence accordingly. From the defendant s perspective, it may be necessary to subpoena records from plaintiff s healthcare insurer to develop evidence of the amounts actually paid to satisfy plaintiff s medical bills, as some physicians are producing billing statements alone, and claiming an inability to produce printouts of amounts paid. V. WRONGFUL DEATH A. Section , R.S.Mo Supp In every action brought under section , the trier of the facts may give to the party or parties entitled thereto such damages as the trier of the facts may deem fair and just for the death and loss thus occasioned, having regard to the pecuniary losses suffered by reason of the death, funeral expenses, and the reasonable value of the services, consortium, companionship, comfort, instruction, guidance, counsel, training, and support of which those on whose behalf suit may be brought have been deprived by reason of such death and without limiting such damages to those which would be sustained prior to attaining the age of majority by the deceased or by the person suffering any such loss. In addition, the trier of the facts may award such 8

9 damages as the deceased may have suffered between the time of injury and the time of death and for the recovery of which the deceased might have maintained an action had death not ensued. The mitigating or aggravating circumstances attending the death may be considered by the trier of the facts, but damages for grief and bereavement by reason of the death shall not be recoverable. If the deceased was not employed full time and was at least fifty percent responsible for the care of one or more minors or disabled persons, or persons over sixty-five years of age, there shall be a rebuttable presumption that the value of the care provided, regardless of the number of persons cared for, is equal to one hundred and ten percent of the state average weekly wage, as computed under section , RSMo. If the deceased is under the age of eighteen, there shall be a rebuttable presumption that the annual pecuniary losses suffered by reason of the death shall be calculated based on the annual income of the deceased's parents, provided that if the deceased has only one parent earning income, then the calculation shall be based on such income, but if the deceased had two parents earning income, then the calculation shall be based on the average of the two incomes. B. Rebuttable presumption Although there have been no published opinions under the new wrongful death damages statute, these authors are aware of one case in which a plaintiff attempted to bar defendant s expert from testifying about the pecuniary losses suffered by reason of the death of a child based on the rebuttable presumption. At the time of publication of these materials, it is unknown how the court ruled. C. Death of a Caregiver Under the new law, the Missouri Wrongful Death Statute has been supplemented. A new item of pecuniary damages has been added for the death of a caregiver. Currently, provides: If the deceased was not employed full time and was at least fifty percent responsible for the care of one or more minors or disabled persons, or persons over sixty-five years of age, there shall be a rebuttable presumption that the value of the care provided, regardless of the number of persons cared for, is equal to one hundred and ten percent of the state average weekly wage, as computed under , R.S.Mo. (Emphasis added.) This language is interesting in several respects: 1. First of all, the decedent caregiver must not have been employed full time. The rationale underlying this requirement is not clear, especially in light of the fact that the damages flow to the person whom was care was provided. 2. In addition to not being employed full time, the decedent caregiver must have been at least fifty percent responsible for the care of one or more minors or disabled persons, or persons over sixty-five. The language does not address the possibility that the caregiver could be responsible for care without personally rendering the care. Further, no direction is provided as to how to determine what constitutes fifty percent of the care. 9

10 The category of persons who could trigger this pecuniary damage recovery are minors, disabled persons, or person over sixty-five years of age. The terms minors and disabled persons are easily defined; however, the mere fact that a person is over sixty-five does not per se, mean that they are in need of care or a caregiver. Therefore, it could be argued that the death of a spouse who arguably provided care in terms of cooking, cleaning, or financial, to a spouse over the age of sixty-five could trigger this pecuniary damage recovery. 3. This new statutory language does not define some of the terms used therein. For example, there is no definition of what constitutes, care provided. There is no criteria by which to determine whether or not a person is employed full time. Full time work is usually described by the Department of Labor as work in excess of thirty-five hours per week. Missouri s Worker s Compensation Law requires a minimum of thirty hours per week to be considered full time. 4. The state average weekly wage is published by the Missouri Department of Labor and Industrial Relations. From July 1, 2007 through June 30, 2008 it is at $ One hundred and ten percent of the state weekly wage, therefore, would be $778.09, and multiplying by fiftytwo weeks in a year, the amount would be $40, annually. Theoretically, that weekly or yearly wage could be computed out over the life expectancy of the decedent and then calculated to present value and determined as a damage in the case. D. Death of a Minor Where a minor is deceased, the Wrongful Death Statute has been supplemented by the following language: If the deceased is under the age of eighteen, there shall be a rebuttable presumption that the annual pecuniary losses suffered by reason of the death shall be calculated based on the annual income of the deceased s parents, provided that if the deceased has only one parent earning income, then the calculation shall be based on such income, but if the deceased has two parents earning income, then the calculation shall be based on the average of the two incomes. This language is ambiguous and open to interpretation. For example, if a deceased child had one parent earning an income of $100, per year, then the pecuniary loss due to the death of the minor child would be $100, per year. The statute is silent, however, as to whether this presumptive damage would be computed based on the life expectancy of the child or the parent. The statutes does not, on its face, require any reduction in the calculations for any consumption by the minor child. Indeed, it would appear to be somewhat speculative to attempt to determine what a person would consume in the future. Therefore, a jury could then be left to try to determine (guess) how much of that $100, per year would have been consumed by the minor and how much would have been used for the benefit of the parents. 10

11 VI. PUNITIVE DAMAGES A. Section , R.S.Mo Supp All actions tried before a jury involving punitive damages, including tort actions based upon improper health care, shall be conducted in a bifurcated trial before the same jury if requested by any party. 2. In the first stage of a bifurcated trial, in which the issue of punitive damages is submissible, the jury shall determine liability for compensatory damages, the amount of compensatory damages, including nominal damages, and the liability of a defendant for punitive damages. Evidence of defendant's financial condition shall not be admissible in the first stage of such trial unless admissible for a proper purpose other than the amount of punitive damages. 3. If during the first stage of a bifurcated trial the jury determines that a defendant is liable for punitive damages, that jury shall determine, in a second stage of trial, the amount of punitive damages to be awarded against such defendant. Evidence of such defendant's net worth shall be admissible during the second stage of such trial. 4. Within the time for filing a motion for new trial, a defendant may file a post-trial motion requesting the amount awarded by the jury as punitive damages be credited by the court with amounts previously paid by the defendant for punitive damages arising out of the same conduct on which the imposition of punitive damages is based. At any hearing, the burden on all issues relating to such a credit shall be on the defendant and either party may introduce relevant evidence on such motion. Such a motion shall be determined by the trial court within the time and according to procedures applicable to motions for new trial. If the trial court sustains such a motion the trial court shall credit the jury award of punitive damages by the amount found by the trial court to have been previously paid by the defendant arising out of the same conduct and enter judgment accordingly. If the defendant fails to establish entitlement to a credit under the provisions of this section, or the trial court finds from the evidence that the defendant's conduct out of which the prior punitive damages award arose was not the same conduct on which the imposition of punitive damages is based in the pending action, or the trial court finds the defendant unreasonably continued the conduct after acquiring actual knowledge of the dangerous nature of such conduct, the trial court shall disallow such credit, or, if the trial court finds that the laws regarding punitive damages in the state in which the prior award of punitive damages was entered substantially and materially deviate from the law of the State of Missouri and that the nature of such deviation provides good cause for disallowance of the credit based on the public policy of Missouri, then the trial court may disallow all or any part of the credit provided by this section. 5. The credit allowable under this section shall not apply to causes of action for libel, slander, assault, battery, false imprisonment, criminal conversation, malicious prosecution or fraud. 6. The doctrines of remittitur and additur, based on the trial judge's assessment of the totality of the surrounding circumstances, shall apply to punitive damage awards. 11

12 7. As used in this section, "punitive damage award" means an award for punitive or exemplary damages or an award for aggravating circumstances. 8. Discovery as to a defendant's assets shall be allowed only after a finding by the trial court that it is more likely than not that the plaintiff will be able to present a submissible case to the trier of fact on the plaintiff's claim of punitive damages. B. Section , R.S.Mo Supp There have been no published cases addressing the new punitive damages rules. 1. No award of punitive damages against any defendant shall exceed the greater of: (1) Five hundred thousand dollars; or (2) Five times the net amount of the judgment awarded to the plaintiff against the defendant. Such limitations shall not apply if the State of Missouri is the plaintiff requesting the award of punitive damages, or the defendant pleads guilty to or is convicted of a felony arising out of the acts or omissions pled by the plaintiff. 2. The provisions of this section shall not apply to civil actions brought under section , RSMo, that allege a violation of section , , , or , RSMo, to the extent that the alleged violation of section , RSMo, relates to or involves a violation of section , , or , RSMo, or subdivision (3) of section , RSMo, as it relates to housing. C. Recent trends There have been no published cases addressing the new punitive damages rules. The authors of these materials know of one case in which defendant sought a threshold ruling on the submissibility of punitive damages prior to plaintiff being allowed to discover defendant s assets. After the motion was filed, the punitive damage count was dropped. VII. SERVICE OF PROCESS A. Section , R.S.Mo Supp A corporation's registered agent is the corporation's agent for service of process, notice, or demand required or permitted by law to be served on the corporation. 2. If a corporation has no registered agent, or the agent cannot with reasonable diligence be served, the corporation may be served by registered or certified mail, return receipt requested, addressed to the secretary of the corporation at its principal office shown in the most recent annual report filed under section Service is perfected under this subsection on the earliest of: 12

13 (1) The date the corporation receives the mail; (2) The date shown on the return receipt, if signed on behalf of the corporation; or (3) Five days after its deposit in the United States mail, if mailed and correctly addressed with first class postage affixed. 3. This section does not prescribe the only means, or necessarily the required means, of serving a corporation. VIII. MEDICAL MALPRACTICE A. Section , R.S.Mo Supp (4) "Health care provider", any physician, hospital, health maintenance organization, ambulatory surgical center, long-term care facility including those licensed under chapter 198, RSMo, dentist, registered or licensed practical nurse, optometrist, podiatrist, pharmacist, chiropractor, professional physical therapist, psychologist, physician-in-training, and any other person or entity that provides health care services under the authority of a license or certificate; B. Recent trends The definition of health care provider has not changed in any significant way in this wave of tort reform except that it now clearly encompasses nursing homes licensed under Chapter 198. C. Section , R.S.Mo Supp Any physician licensed under chapter 334, RSMo, who provides medical treatment to a patient at a city or county health department organized under chapter 192, RSMo, or chapter 205, RSMo, a city health department operating under a city charter, a combined city-county health department, or a nonprofit community health center or other nonprofit entity that solely provides free health care services and is qualified as exempt from federal taxation under Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, shall not be liable for any civil damages for acts or omissions unless the damages were occasioned by gross negligence or by willful or wanton acts or omissions by such physician in rendering such treatment or unless the physician maintained, at the time of treatment, liability insurance for such treatment, provided that such treatment: (1) Shall not include the performance of an abortion; and (2) Is certified in advance of the treatment as being rendered free of charge to the patient, with no compensation from any party or third-party provider, or any attempt to obtain compensation from any third-party provider. For purposes of this section, a physician covered under the state legal expense fund under section , RSMo, shall not be construed as maintaining liability insurance coverage under 13

14 this section. D. Section , R.S.Mo Supp All actions against physicians, hospitals, dentists, registered or licensed practical nurses, optometrists, podiatrists, pharmacists, chiropractors, professional physical therapists, and any other entity providing health care services and all employees of any of the foregoing acting in the course and scope of their employment, for damages for malpractice, negligence, error or mistake related to health care shall be brought within two years from the date of occurrence of the act of neglect complained of, except that: (1) In cases in which the act of neglect complained of is introducing and negligently permitting any foreign object to remain within the body of a living person, the action shall be brought within two years from the date of the discovery of such alleged negligence, or from the date on which the patient in the exercise of ordinary care should have discovered such alleged negligence, whichever date first occurs; and (2) In cases in which the act of neglect complained of is the negligent failure to inform the patient of the results of medical tests, the action for failure to inform shall be brought within two years from the date of the discovery of such alleged negligent failure to inform, or from the date on which the patient in the exercise of ordinary care should have discovered such alleged negligent failure to inform, whichever date first occurs; except that, no such action shall be brought for any negligent failure to inform about the results of medical tests performed more than two years before August 28, For purposes of this subdivision, the act of neglect based on the negligent failure to inform the patient of the results of medical tests shall not include the act of informing the patient of the results of negligently performed medical tests or the act of informing the patient of erroneous test results; and (3) In cases in which the person bringing the action is a minor less than eighteen years of age, such minor shall have until his or her twentieth birthday to bring such action. In no event shall any action for damages for malpractice, error, or mistake be commenced after the expiration of ten years from the date of the act of neglect complained of or for two years from a minor's eighteenth birthday, whichever is later. E. Section , R.S.Mo. Supp In any action against a health care provider for damages for personal injury or death on account of the rendering of or failure to render health care services, the plaintiff or the plaintiff's attorney shall file an affidavit with the court stating that he or she has obtained the written opinion of a legally qualified health care provider which states that the defendant health care provider failed to use such care as a reasonably prudent and careful health care provider would have under similar circumstances and that such failure to use such reasonable care directly caused or directly contributed to cause the damages claimed in the petition. 2. As used in this section, the term "legally qualified health care provider" shall 14

15 mean a health care provider licensed in this state or any other state in the same profession as the defendant and either actively practicing or within five years of retirement from actively practicing substantially the same specialty as the defendant. 3. The affidavit shall state the name, address, and qualifications of such health care providers to offer such opinion. 4. A separate affidavit shall be filed for each defendant named in the petition. 5. Such affidavit shall be filed no later than ninety days after the filing of the petition unless the court, for good cause shown, orders that such time be extended for a period of time not to exceed an additional ninety days. 6. If the plaintiff or his attorney fails to file such affidavit the court shall, upon motion of any party, dismiss the action against such moving party without prejudice. 7. Within one hundred eighty days after the filing of the petition, any defendant may file a motion to have the court examine in camera the aforesaid opinion and if the court determines that the opinion fails to meet the requirements of this section, then the court shall conduct a hearing within thirty 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 due to medical negligence by a defendant. If the court finds that there is no such probable cause, the court shall dismiss the petition and hold the plaintiff responsible for the payment of the defendant's reasonable attorney fees and costs. F. Recent trends The affidavit requirement has been changed significantly under current law. Under the new subsection 3, plaintiffs must now specify in the affidavit they file with the court, the name, address and qualifications of their experts. There is no such requirement that defendants provide similar information and only plaintiffs can be penalized for any failure to adhere to this requirement. There is no mechanism by which plaintiffs can challenge the qualifications of defense experts to render an opinion; however defendant can challenge plaintiffs experts as set forth in subsection 6 and 7. G. Section , R.S.Mo Supp As used in this section, unless the context clearly indicates otherwise, the following words and terms shall have the meanings indicated: (1) "Health care professional", a physician or surgeon licensed under the provisions of chapter 334, RSMo, or a dentist licensed under the provisions of chapter 332, RSMo, or a podiatrist licensed under the provisions of chapter 330, RSMo, or an optometrist licensed under the provisions of chapter 336, RSMo, or a pharmacist licensed under the provisions of chapter 338, RSMo, or a chiropractor licensed under the provisions of chapter 331, RSMo, or a psychologist licensed under the provisions of chapter 337, RSMo, or a nurse licensed under the provisions of chapter 335, RSMo, or a social worker licensed under the provisions of chapter 337, RSMo, or a professional 15

16 counselor licensed under the provisions of chapter 337, RSMo, or a mental health professional as defined in section , RSMo, while acting within their scope of practice; (2) "Peer review committee", a committee of health care professionals with the responsibility to evaluate, maintain, or monitor the quality and utilization of health care services or to exercise any combination of such responsibilities. 2. A peer review committee may be constituted as follows: (1) Comprised of, and appointed by, a state, county or local society of health care professionals; (2) Comprised of, and appointed by, the partners, shareholders, or employed health care professionals of a partnership or professional corporation of health care professionals, or employed health care professionals of a university or an entity affiliated with a university operating under chapter 172, 174, 352, or 355, RSMo; (3) Appointed by the board of trustees, chief executive officer, or the organized medical staff of a licensed hospital, or other health facility operating under constitutional or statutory authority, including long-term care facilities licensed under chapter 198, RSMo, or an administrative entity of the department of mental health recognized pursuant to the provisions of subdivision (3) of subsection 1 of section , RSMo; (4) Any other organization formed pursuant to state or federal law authorized to exercise the responsibilities of a peer review committee and acting within the scope of such authorization; (5) Appointed by the board of directors, chief executive officer or the medical director of the licensed health maintenance organization. 3. Each member of a peer review committee and each person, hospital governing board, health maintenance organization board of directors, and chief executive officer of a licensed hospital or other hospital operating under constitutional or statutory authority, chief executive officer or medical director of a licensed health maintenance organization who testifies before, or provides information to, acts upon the recommendation of, or otherwise participates in the operation of, such a committee shall be immune from civil liability for such acts so long as the acts are performed in good faith, without malice and are reasonably related to the scope of inquiry of the peer review committee. 4. Except as otherwise provided in this section, the interviews, memoranda, proceedings, findings, deliberations, reports, and minutes of peer review committees, or the existence of the same, concerning the health care provided any patient are privileged and shall not be subject to discovery, subpoena, or other means of legal compulsion for their release to any person or entity or be admissible into evidence in any judicial or administrative action for failure to provide appropriate care. Except as otherwise provided in this section, no person who was in attendance at any peer review committee proceeding shall be permitted or required to disclose any information acquired in connection with or in the course of such proceeding, or to disclose 16

17 any opinion, recommendation, or evaluation of the committee or board, or any member thereof; provided, however, that information otherwise discoverable or admissible from original sources is not to be construed as immune from discovery or use in any proceeding merely because it was presented during proceedings before a peer review committee nor is a member, employee, or agent of such committee, or other person appearing before it, to be prevented from testifying as to matters within his personal knowledge and in accordance with the other provisions of this section, but such witness cannot be questioned about testimony or other proceedings before any health care review committee or board or about opinions formed as a result of such committee hearings. The disclosure of any interview, memoranda, proceedings, findings, deliberations, reports, or minutes to any person or entity, including but not limited to governmental agencies, professional accrediting agencies, or other health care providers, whether proper or improper, shall not waive or have any effect upon its confidentiality, nondiscoverability, or nonadmissibility. 5. The provisions of subsection 4 of this section limiting discovery and admissibility of testimony as well as the proceedings, findings, records, and minutes of peer review committees do not apply in any judicial or administrative action brought by a peer review committee or the legal entity which formed or within which such committee operates to deny, restrict, or revoke the hospital staff privileges or license to practice of a physician or other health care providers; or when a member, employee, or agent of the peer review committee or the legal entity which formed such committee or within which such committee operates is sued for actions taken by such committee which operate to deny, restrict or revoke the hospital staff privileges or license to practice of a physician or other health care provider. 6. Nothing in this section shall limit authority otherwise provided by law of a health care licensing board of the State of Missouri to obtain information by subpoena or other authorized process from peer review committees or to require disclosure of otherwise confidential information relating to matters and investigations within the jurisdiction of such health care licensing boards. H. Section , R.S.Mo Supp The portion of statements, writings, or benevolent gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering, or death of a person and made to that person or to the family of that person shall be inadmissible as evidence of an admission of liability in a civil action. However, nothing in this section shall prohibit admission of a statement of fault. 2. For the purposes of this section, the following terms mean: (1) "Benevolent gestures", actions which convey a sense of compassion or commiseration emanating from humane impulses; (2) "Family", the spouse, parent, grandparent, stepmother, stepfather, child, grandchild, brother, sister, half brother, half sister, adopted children of a parent, or spouse's parents of an injured party. I. Section , R.S.Mo Supp

18 1. In any action against a health care provider for damages for personal injury or death arising out of the rendering of or the failure to render health care services, no plaintiff shall recover more than three hundred fifty thousand dollars for noneconomic damages irrespective of the number of defendants. 2. (1) Such limitation shall also apply to any individual or entity, or their employees or agents that provide, refer, coordinate, consult upon, or arrange for the delivery of health care services to the plaintiff; and (2) Who is a defendant in a lawsuit brought against a health care provider under this chapter, or who is a defendant in any lawsuit that arises out of the rendering of or the failure to render health care services. (3) No individual or entity whose liability is limited by the provisions of this chapter shall be liable to any plaintiff based on the actions or omissions of any other entity or person who is not an employee of such individual or entity whose liability is limited by the provisions of this chapter. Such limitation shall apply to all claims for contribution. 3. In any action against a health care provider for damages for personal injury or death arising out of the rendering of or the failure to render health care services, where the trier of fact is a jury, such jury shall not be instructed by the court with respect to the limitation on an award of noneconomic damages, nor shall counsel for any party or any person providing testimony during such proceeding in any way inform the jury or potential jurors of such limitation. 4. For purposes of sections to , any spouse claiming damages for loss of consortium of their spouse shall be considered to be the same plaintiff as their spouse. 5. Any provision of law or court rule to the contrary notwithstanding, an award of punitive damages against a health care provider governed by the provisions of sections to shall be made only upon a showing by a plaintiff that the health care provider demonstrated willful, wanton or malicious misconduct with respect to his actions which are found to have injured or caused or contributed to cause the damages claimed in the petition. 6. For purposes of sections to , all individuals and entities asserting a claim for a wrongful death under section , RSMo, shall be considered to be one plaintiff. J. Recent trends Perhaps the most obvious and profound change brought about by HB 393 is the reduction of the cap on damages for non-economic loss. When tort reform was first codified in the late 1980 s, the cap was set at the same amount of three hundred fifty thousand dollars; however, there were significant differences: 18

19 The cap automatically increased each year based on an amount determined by the cost of living index. Unlike the current law where, pursuant to (1), only one cap can be recovered, regardless of the number of defendants in the case, the previous iteration of this section provided that each defendant could be liable to each plaintiff for one cap. Spouses making claims for loss of consortium under the current version of the law are considered as the same plaintiff as their spouse and, therefore, must share a single cap. The effects of this limitation are obvious. For example, a medical negligence case against two defendants involving death with no medical special damages filed prior to August 25, 2005 has a present maximum value of $1.216 million (two caps of $608,000 each.) The same case, filed against the same defendants but after August 25, 2005, has a present maximum value of $350,000. K. Section , R.S.Mo Supp In any action against a health care provider for damages for personal injury or death arising out of the rendering of or the failure to render health care services, past damages shall be payable in a lump sum. 2. At the request of any party to such action made prior to the entry of judgment, the court shall include in the judgment a requirement that future damages be paid in whole or in part in periodic or installment payments if the total award of damages in the action exceeds one hundred thousand dollars. Any judgment ordering such periodic or installment payments shall specify a future medical periodic payment schedule, which shall include the recipient, the amount of each payment, the interval between payments, and the number of payments. The duration of the future medical payment schedule shall be for a period of time equal to the life expectancy of the person to whom such services were rendered, as determined by the court, based solely on the evidence of such life expectancy presented by the plaintiff at trial. The amount of each of the future medical periodic payments shall be determined by dividing the total amount of future medical damages by the number of future medical periodic payments. The court shall apply interest on such future periodic payments at a per annum interest rate no greater than the coupon issue yield equivalent, as determined by the Federal Reserve Board, of the average accepted auction price for the last auction of fifty-two-week United States Treasury bills settled immediately prior to the date of the judgment. The judgment shall state the applicable interest rate. The parties shall be afforded the opportunity to agree on the manner of payment of future damages, including the rate of interest, if any, to be applied, subject to court approval. However, in the event the parties cannot agree, the unresolved issues shall be submitted to the court for resolution, either with or without a post-trial evidentiary hearing which may be called at the request of any party or the court. If a defendant makes the request for payment pursuant to this section, such request shall be binding only as to such defendant and shall not apply to or bind any other defendant. 19

20 3. As a condition to authorizing periodic payments of future damages, the court may require a judgment debtor who is not adequately insured to post security or purchase an annuity adequate to assure full payment of such damages awarded by the judgment. Upon termination of periodic payments of future damages, the court shall order the return of this security or so much as remains to the judgment debtor. 4. If a plaintiff and his attorney have agreed that attorney's fees shall be paid from the award, as part of a contingent fee arrangement, it shall be presumed that the fee will be paid at the time the judgment becomes final. If the attorney elects to receive part or all of such fees in periodic or installment payments from future damages, the method of payment and all incidents thereto shall be a matter between such attorney and the plaintiff and not subject to the terms of the payment of future damages, whether agreed to by the parties or determined by the court. 5. Upon the death of a judgment creditor, the right to receive payments of future damages, other than future medical damages, being paid by installments or periodic payments will pass in accordance with the Missouri probate code unless otherwise transferred or alienated prior to death. Payment of future medical damages will continue to the estate of the judgment creditor only for as long as necessary to enable the estate to satisfy medical expenses of the judgment creditor that were due and owing at the time of death, which resulted directly from the injury for which damages were awarded, and do not exceed the dollar amount of the total payments for such future medical damages outstanding at the time of death. 6. Nothing in this section shall prevent the parties from contracting and agreeing to settle and resolve the claim for future damages. If such an agreement is reached by the parties, the future periodic payment schedule shall not apply. L. Periodic Payments of Future Medical Costs HB 393 also changed how future medical periodic payments are to be paid in medical malpractice cases. Parts 2 and 6 of have been changed and new language has been added. The new language appears in bold: 2. At the request of any part to such action made prior to the entry of judgment, the court shall include in the judgment a requirement that future damages be paid in whole or in part in periodic or installment payments if the total award of damages in the action exceeds one hundred thousand dollars. Any judgment ordering such periodic or installment payments shall specify a future medical periodic payment schedule, which shall include the recipient, the amount of each payment, the interval between payments, and the number of payments. The duration of the future medical payment schedule shall be for a period of time equal to the life expectancy of the person to whom such services were rendered, as determined by the court, based solely on the evidence of such life expectancy presented by the plaintiff at trial. The amount of each of the future medical periodic payments shall be determined by dividing the total amount of future medical damages by the number of future 20

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