|SB 0280||Enacts various tort reform measures|
|LR Number:||0410S.12T||Fiscal Note:||0410-12|
|Committee:||Judiciary and Civil & Criminal Jurisprudence|
|Last Action:||09/11/03 S defeats motion to override Governor's veto (Scott)||Journal page:|
|Title:||SS SS SCS SB 280|
|Effective Date:||August 28, 2003|
SS/SS/SCS/SB 280 - This act enacts several tort reform measures.
PRIVATE ATTORNEY RETENTION ACT (Sections 34.360 to 34.371) - State agencies that use a lawyer or law firm must obtain such services through open and competitive bids. Any state bank account with a value of over $10,000 must be obtained through open and competitive bids. Any contract for legal services in excess of $100,000 must receive a specific appropriation. At the conclusion of any legal proceeding in which outside legal services are used, certain reporting requirements are enacted. A state agency cannot pay expenses in excess of $1,000 per hour for legal services.
LEGAL EXPENSE FUND (Section 105.711) - Adds attorneys practicing pro bono at tax-exempt nonprofit community social services centers to coverage from the Fund up to $500,000. Adds physicians working in county jails to coverage from the Fund.
IMMUNITY ON LAND NEAR PUBLIC TRAILS (Section 258.100) Expands immunity from civil liability for certain landowners adjoining public trails from only certain first class counties to all political subdivisions.
SEAT BELT VIOLATIONS (Section 307.178) Under this provision, failure to wear a seat belt shall be considered as evidence of comparative negligence in a lawsuit. The failure to wear a seatbelt can also be admitted to mitigate damages without introducing expert evidence proving that the failure to wear the belt contributed to the injuries.
VENUE IN SUITS AGAINST NOT-FOR-PROFIT CORPORATIONS (355.176) Provides that venue shall be in county where the cause of action accrued or the county where the office of the registered agent of the corporation is maintained.
INTEREST ON JUDGEMENTS (Section 408.040) Claims for prejudgement and post-judgement interest in tort actions shall be calculated at an interest rate tied to the auction price for 52 week Treasury bills.
LIENS FOR HEALTH PRACTITIONERS (Section 430.225) - Allows liens for health practitioners who provide medical services to patients injured by tortfeasors. The original enactment of this section was rule unconstitutional by the Supreme Court based on a Hammerschmidt problem.
VENUE (Sections 508.010, 508.040 and 508.120) - This provision requires that venue in all tort actions, including torts for improper healthcare but excluding suits against motor carriers, shall only be in county where cause of action accrued or the county where the defendant resides. Residence for a corporation is either the county where the registered agent is located, or if no such agent exists, then Cole County. In suits against corporations, venue shall only be in the county where the cause of action accrued or the county of the corporation's residence. The act allows any defendant to move for change of venue upon the adding of a new defendant if current venue would have been inappropriate if new defendant had initially been named.
VENUE TRANSFER (Section 508.075) A court shall dismiss or transfer venue for a cause of action accruing outside the county in which the court is located if there is another more convenient venue. The determination of convenience is based on a number of factors, including: location of accrual of cause, location of fact witnesses and health care providers, and residence of the parties. A motion to transfer venue may be filed within 90 days after answer is due. A party filing a case in a county where none of the defendants reside or where cause accrued shall bear the burden that the pending venue is more convenient than a forum in which defendants reside or cause accrued. If court grants the motion, then the case is either transferred or dismissed so that the plaintiff can file in a more convenient forum in another state. If the case is dismissed and the plaintiff files in another state with jurisdiction within six months, then defendants must accept service. If any defendant refuses or the court in the other forum refuses to accept jurisdiction, then the case is reinstated in the court where it was dismissed.
OBJECTIONS RAISED BY MOTION (Section 509.290) Adds convenient forum to the list of objections that may be raised by motion whether or not such objection appears in the pleadings.
PUNITIVE DAMAGES (Section 510.263) In tort actions, including for improper healthcare, the act allows discovery of defendant's assets only after judge determines that plaintiff has a submissible case on punitive damages. Includes definition of "punitive damages."
CLASS ACTION CERTIFICATION (Section 512.020) Orders granting or denying class certification shall be appealable. The court of appeals must accept the appeal, but the circuit court or court of appeals will have discretion on whether to stay proceedings pending appeal. Orders granting or denying a motion based on convenient forum shall be appealable.
SUPERSEDEAS BONDS (Section 512.099) This act establishes a $50 million limit on supersedeas bonds if the appellant proves that it has unencumbered assets that equal or exceed the amount of the judgement in excess of $50 million. If the appellant fails to maintain such level of assets or is purposely dissipating assets outside the ordinary course of business to avoid payment of the judgment, then the court may require a bond equal to the full amount of the judgment.
STATUTE OF LIMITATIONS IN CHILDHOOD SEXUAL ABUSE CASES (Section 516.600) - The act provides that the statute of limitations in actions to recover damages from injury caused by childhood sexual abuse shall be ten years of the plaintiff turning 21 years of age or within three years of the date of discovering, or reasonably should have discovered, that the injury was caused by childhood sexual abuse, which occurs later.
JOINT AND SEVERAL LIABILITY (Section 537.067) Provides for joint and several liability for compensatory and noneconomic damages if a defendant is found to bear 10% or more of the fault, but only makes a defendant liable for their portion of fault for punitive damages.
MEDIATION (Section 537.072) This provision requires mediation for all tort actions unless the court finds that mediation has no chance of success.
PADDLESPORT LIABILITY (Section 537.327) Limits liability of paddlesport outfitters for injury or death cause by inherent risks of paddlesport activities.
AFFIDAVITS IN TORT ACTIONS AGAINST LICENSED PROFESSIONALS (Section 537.530) This provision requires an affidavit from a similarly licensed professional supporting a cause of action for non-medical claims of professional negligence.
DEFINITIONS (Section 538.205) Adds long-term care facilities (convalescent, nursing and boarding homes) to definition of "health care provider" as used in tort actions based on improper health care. Modifies definition of "punitive damages" to include exemplary damages and damages for aggravating circumstances.
MEDICAL MALPRACTICE NONECONOMIC DAMAGES CAP (Section 538.210) This provision removes the words "per occurrence" to ensure that there is a single cap, and not multiple caps per incidents of medical malpractice as held by the court in Scott v. SSM Healthcare. Provides for a cap on noneconomic damages of $350,000 and that periodic inflationary increases from the cap shall begin on August 28, 2003. Defines "defendant" to include an entity or person that is sued in an action against a health care provider or in action for 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.
AFFIDAVIT OF MERIT (Section 538.225) This provision would require (current law is discretionary) a court to dismiss any medical malpractice claim for which the plaintiff fails to file an affidavit stating that he or she has obtained the written opinion of a health care provider which states that the defendant failed to use such care as a reasonably prudent and careful health care provider would have under similar circumstances and that such failure caused the plaintiff's damages. The act limits extensions of time to file such affidavit to 90 days. The provision also requires the expert to be licensed and actively practicing in substantially the same specialty as the defendant. Any defendant may request the court to review the opinion for a determination of whether the expert meets the qualifications of this section.
BENEVOLENT GESTURES (Section 538.227) This provision would make statements, writings, or benevolent gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering, or death of a person involved in an accident inadmissible as evidence in a civil action. Statements of fault, however, shall not be inadmissible.
QUALITY ASSESSMENT RECORDS (Section 538.301) Prohibits certain quality assessment committee records, written proceedings or documents produced by or through the activities of any state or federal agency from being subject to release by subpoena or other means of compulsion or admissible in certain civil, criminal and administrative proceedings. Prohibits civil liability for a person's act done in good faith as a member of a quality assessment committee. Persons related to such committees cannot be compelled to testify with respect to such records and documents or actions taken by the committee.
SEVERABILITY CLAUSE (Section 1) The act includes a severability clause.
EFFECTIVE DATE OF ACT (Section 2) The act shall only apply to cases filed after August 28, 2003.
This act is similar to HCS/HB 273 (2003).