SENATE JOURNAL - THIRTY-SIXTH DAY - WEDNESDAY, MARCH 12, 2003

Journal of the Senate

FIRST REGULAR SESSION

THIRTY-SIXTH DAY--WEDNESDAY, MARCH 12, 2003

The Senate met pursuant to adjournment.

President Maxwell in the Chair.

Reverend Carl Gauck offered the following prayer:

"Faith lives only as long as it struggles." (Martin Luther)

Heavenly Father, we are often so busy and restless so much of the time that we seem never to get our faith to be as good as we desire it. So we pray that with Your help we may find time each day to struggle and wrestle with our doubts, explore our faith and willingly cry unto You to help us with our unbelief in order that our faith may grow. In Your Holy Name we pray. Amen.

The Pledge of Allegiance to the Flag was recited.

A quorum being established, the Senate proceeded with its business.

The Journal of the previous day was read and approved.

The following Senators were present during the day's proceedings:

	Present--Senators
Bartle	Bland	Bray	Caskey
Cauthorn	Champion	Childers	Clemens
Coleman	Days	Dolan	Dougherty
Foster	Gibbons	Goode	Griesheimer
Gross	Jacob	Kennedy	Kinder
Klindt	Loudon	Mathewson	Nodler
Russell	Scott	Shields	Steelman
Stoll	Vogel	Wheeler	Yeckel--32
	Absent with leave--Senators
DePasco	Quick--2

	The Lieutenant Governor was present.

RESOLUTIONS

Senator Clemens offered Senate Resolution No. 381, regarding Angelita L. Carano-King, which was adopted.

Senator Clemens offered Senate Resolution No. 382, regarding Amanda Barke, which was adopted.

Senator Clemens offered Senate Resolution No. 383, regarding Robert W. Aye, Willard, which was adopted.

Senator Dougherty offered Senate Resolution No. 384, regarding Kenedy and Wyatt Fischer, Jefferson City, which was adopted.

SENATE BILLS FOR PERFECTION

At the request of Senator Mathewson, SB 207 was placed on the Informal Calendar.

At the request of Senator Shields, SB 264, with SCS, was placed on the Informal Calendar.

Senator Scott moved that SB 280, with SCS, be taken up for perfection, which motion prevailed.

SCS for SB 280, entitled:

SENATE COMMITTEE SUBSTITUTE FOR

SENATE BILL NO. 280

An Act to repeal sections 105.711, 258.100, 307.178, 430.225, 508.010, 508.040, 510.263, 512.020, 537.067, 538.210, and 538.225, RSMo, and to enact in lieu thereof seventeen new sections relating to tort reform.

Was taken up.

Senator Scott moved that SCS for SB 280 be adopted.

Photographers from the Associated Press and KOMU-TV were given permission to take pictures in the Senate Chamber today.

Senator Bartle offered SS for SCS for SB 280, entitled:

SENATE SUBSTITUTE FOR

SENATE COMMITTEE SUBSTITUTE FOR

SENATE BILL NO. 280

An Act to repeal sections 105.711, 258.100, 307.178, 430.225, 508.010, 508.040, 508.120, 509.290, 510.263, 512.020, 537.067, 538.210, and 538.225, RSMo, and to enact in lieu thereof twenty new sections relating to tort reform.

Senator Bartle moved that SS for SCS for SB 280 be adopted.

Senator Scott offered SS for SS for SCS for SB 280, entitled:

SENATE SUBSTITUTE FOR

SENATE COMMITTEE SUBSTITUTE FOR

SENATE BILL NO. 280

An Act to repeal sections 105.711, 258.100, 307.178, 355.176, 408.040, 430.225, 508.010, 508.040, 508.120, 509.290, 510.263, 512.020, 537.067, 538.205, 538.210, and 538.225, RSMo, and to enact in lieu thereof twenty-nine new sections relating to tort reform.

Senator Scott moved that SS for SS for SCS for SB 280 be adopted.

Senator Jacob offered SA 1:

SENATE AMENDMENT NO. 1

Amend Senate Substitute for Senate Substitute for Senate Committee Substitute for Senate Bill No. 280, Pages 1-9, Section 105.711, by striking all of said section from the bill; and

Further amend said bill, Pages 9-11, Section 258.100, by striking all of said section from the bill; and

Further amend said bill, Pages 11-13, Section 307.178, by striking all of said section from the bill; and

Further amend said bill, Pages 13-14, Section 355.176, by striking all of said section from the bill; and

Further amend said bill, Pages 14-15, Section 408.040, by striking all of said section from the bill; and

Further amend said bill, Pages 15-16, Section 430.225, by striking all of said section from the bill; and

Further amend said bill, Pages 16-18, Section 508.010, by striking all of said section from the bill; and

Further amend said bill, Page 18, Section 508.040, by striking all of said section from the bill; and

Further amend said bill, Pages 18-21, Section 508.075, by striking all of said section from the bill; and

Further amend said bill, Pages 21-22, Section 508.120, by striking all of said section from the bill; and

Further amend said bill, Page 22, Section 509.290, by striking all of said section from the bill; and

Further amend said bill, Pages 22-25, Section 510.263, by striking all of said section from the bill; and

Further amend said bill, Pages 25-26, Section 512.020, by striking all of said section from the bill; and

Further amend said bill, Page 26, Section 512.099, by striking all of said section from the bill; and

Further amend said bill, Pages 26-28, Section 537.067, by striking all of said section from the bill; and

Further amend said bill, Page 28, Section 537.071, by striking all of said section from the bill; and

Further amend said bill, Pages 28-29, Section 537.072, by striking all of said section from the bill; and

Further amend said bill, Pages 29-32, Section 537.327, by striking all of said section from the bill; and

Further amend said bill, Pages 32-33, Section 537.530, by striking all of said section from the bill; and

Further amend said bill, Page 34, Section 537.767, by striking all of said section from the bill; and

Further amend said bill, Pages 34-36, Section 538.205, by striking all of said section from the bill; and

Further amend said bill, Pages 36-38, Section 538.210, by striking all of said section from the bill; and

Further amend said bill, Pages 38-40, Section 538.213, by striking all of said section from the bill; and

Further amend said bill, Page 40, Section 538.224, by striking all of said section from the bill; and

Further amend said bill, Pages 40-41, Section 538.225, by striking all of said section from the bill; and

Further amend said bill, Pages 41-42, Section 538.227, by striking all of said section from the bill; and

Further amend said bill, Pages 42-43, Section 538.234, by striking all of said section from the bill; and

Further amend said bill, Page 43, Section 538.301, by striking all of said section from the bill; and

Further amend said bill, Page 43, Section 1, by striking all of said section from the bill; and

Further amend said bill, Pages 43-44, Section 355.176, by striking all of said section from the bill; and

Further amend said bill, Pages 44-45, Section 430.225, by striking all of said section from the bill and inserting in lieu thereof the following:

"508.010. Suits instituted by summons shall, except as otherwise provided by law, be brought:

(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;

(5) Any action, local or transitory, in which any county shall be 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;

(6) In all tort actions the suit may be brought in the county where the cause of action accrued regardless of the residence of the parties, and process therein shall be issued by the court of such county and may be served in any county within the state; provided, however, that in any action for defamation or for invasion of privacy the cause of action shall be deemed to have accrued in the county in which the defamation or invasion was first published;

(7) In all tort actions based upon claims of improper health care, except as provided in section 508.070, the suit may only be brought in either:

(a) The county in which the cause of action occurred;

(b) The county in which the defendant resides; or

(c) The county in which the corporate defendant's registered agent may be found.

510.263. 1. 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.

7. As used in this section, the term "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.

537.072. In tort actions based upon improper health care, except for those cases in which the court makes a written finding that mediation would have no chance of success, the court shall establish a discovery period after which the action or proceeding shall be referred to mediation, which shall be conducted by a trained mediator selected from a list approved by the circuit court.

538.210. 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 [per occurrence] for noneconomic damages from any one defendant as defendant is defined in subsection 2 of this section.

2. "Defendant" for purposes of sections 538.205 to 538.230 shall be defined as:

(1) A hospital as defined in chapter 197, RSMo, and its employees and physician employees who are insured under the hospital's professional liability insurance policy or the hospital's self-insurance maintained for professional liability purposes;

(2) A physician, including his nonphysician employees who are insured under the physician's professional liability insurance or under the physician's self-insurance maintained for professional liability purposes;

(3) Any other health care provider, including but not limited to a facility licensed under chapter 198, RSMo, having the legal capacity to sue and be sued and who is not included in subdivisions (1) and (2) of this subsection, including employees of any health care providers who are insured under the health care provider's professional liability insurance policy or self-insurance maintained for professional liability purposes;

(4) All individuals or entities whose liability is based solely upon an act or omission of an agent, servant, or employee shall, for purposes of subsection 1 of this section, be considered the same defendant as the agent, servant, or employee.

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. The limitation on awards for noneconomic damages provided for in this section shall be increased or decreased on an annual basis effective January first of each year in accordance with the Implicit Price Deflator for Personal Consumption Expenditures as published by the Bureau of Economic Analysis of the United States Department of Commerce. The current value of the limitation shall be calculated by the director of the department of insurance, who shall furnish that value to the secretary of state, who shall publish such value in the Missouri Register as soon after each January first as practicable, but it shall otherwise be exempt from the provisions of section 536.021, RSMo.

[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 538.205 to 538.230 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.]

5. Beginning on August 28, 2003, the limitation on awards for noneconomic damages, as otherwise provided for in subsections 1 to 4 of this section, shall be immediately reduced by twenty percent.

6. On August 28, 2003, every insurer authorized to sell medical malpractice liability insurance in this state shall immediately reduce its premiums, rates, and charges on policies in this state to levels which are at least twenty percent less than the premiums, rates, and charges for the same coverage which were in effect on August 28, 2002. For those who apply for medical malpractice liability insurance for the first time in this state on or after August 28, 2003, the premiums, rates, and charges that apply shall be at least twenty percent less than the premiums, rates, and charges which were in effect for such insurer on August 28, 2002, for similarly situated risks. Any separate affiliate of an insurer, established on or after August 28, 2003, shall be subject to the provisions in this section and shall reduce its charges to levels which are at least twenty percent less than the insurer's charges in effect on that date.

7. After August 28, 2003, premiums, rates, and charges for medical malpractice liability insurance issued or renewed in this state shall be increased or decreased on an annual basis effective January first of each year in accordance with the adjustment factors applicable to the limitation on awards for noneconomic damages as provided for in subsection 4 of this section.

8. An insurer authorized to sell medical malpractice liability insurance in this state may file an application with the director of the department of insurance for an exemption from the premium, rate, and charge adjustment limitations set forth in subsection 7 of this section, with respect to the medical malpractice liability insurance policy of an insured who the insurer considers to be an extremely high-risk insured. Upon the filing of such application and upon a finding based upon sufficient proof that the identified insured is an extremely high-risk insured and that the limitations imposed on the insurer pursuant to subsection 7 of this section will not allow the insurer to reasonably protect against the risk posed by providing coverage to the insured, the director may approve premiums, rates, or charges for the policy in excess of the premiums, rates, and charges permitted by subsection 7 of this section. In approving an exemption pursuant to this subsection the director shall approve only those premiums, rates, and charges that are based on the experience of the insured.

9. The director of the department of insurance is authorized to promulgate rules and regulations necessary to effectuate the purposes of this section. Any rule or portion of a rule, as that term is defined in section 536.010, RSMo, that is created under the authority delegated in this section shall become effective only if it complies with and is subject to all of the provisions of chapter 536, RSMo, and, if applicable, section 536.028, RSMo. This section and chapter 536, RSMo, are nonseverable and if any of the powers vested with the general assembly pursuant to chapter 536, RSMo, to review, to delay the effective date, or to disapprove and annul a rule are subsequently held unconstitutional, then the grant of rulemaking authority and any rule proposed or adopted after August 28, 2003, shall be invalid and void.

10. For purposes of this section, all individuals and entities asserting a claim for a wrongful death pursuant to section 537.080, RSMo, based upon claims of improper health care shall be considered to be one plaintiff.

538.225. 1. 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 [his] 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. The affidavit shall state the qualifications of such health care providers to offer such opinion.

3. A separate affidavit shall be filed for each defendant named in the petition.

4. 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.

5. If the plaintiff or his attorney fails to file such affidavit the court [may] shall, upon motion of any party, dismiss the action against such moving party without prejudice.

6. As used in this section, the term "legally qualified health care provider" means a health care provider licensed in this state or any other state who has experience in a like area of expertise as the defendant.

538.227. 1. 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. A statement of fault, however, which is part of, or in addition to, any of the provisions of this subsection shall not be inadmissible pursuant to this section.

2. For the purposes of this section:

(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, lifetime partner or significant other, adopted children of a parent, or spouse's parents of an injured party.

Section 1. 1. Any person may file a miscellaneous case for purpose of securing copies of their health care records or the health care records of any other person for whom he or she is the guardian or attorney-in-fact or is a potential claimant for a wrongful death.

2. A miscellaneous case shall be filed in the circuit in which any of the health care records sought to be obtained are located.

3. (1) The petition shall contain the following:

(a) The name of the individual who received the health care services or medical treatment;

(b) A brief summary of the health care services or medical treatment received;

(c) A brief summary of the outcome of the health care services or medical treatment; and

(d) The names of the health care providers from whom health care records are being sought.

(2) The petition shall not contain:

(a) Allegations of negligence; or

(b) Demands, other than a general demand for access to health care records.

4. Within five days of filing the miscellaneous case, the petitioner shall mail a copy of the petition by regular and certified mail to each health care provider listed in the petition. The petitioner shall certify to the court that the petition has been mailed as required.

5. After filing a miscellaneous case, the petitioner may request the health care records described in subsection 1 of this section by subpoena and, if necessary, subpoena the health care records custodian for a deposition for the sole purpose of securing copies of the health care records and verifying their authenticity. Refusal to provide the requested records may be the basis for the court to impose sanctions or orders of contempt.

6. Filing of a miscellaneous case petition shall toll the applicable statute of limitations for one hundred twenty days on any claim for injuries or death caused by professional negligence of a health care provider, but in no event shall the applicable statute of limitations be tolled pursuant to this section for more than one hundred twenty days.

7. The naming or listing of a health care provider as a person from whom records are requested shall not be considered for any reporting purposes as a claim made against the health care provider.

8. A health care provider, or any person or entity acting on behalf of a health care provider shall not charge more than is allowable pursuant to section 197.227, RSMo, for providing copies of health care records."; and

Further amend the title and enacting clause accordingly.

Senator Jacob moved that the above amendment be adopted.

Senator Jacob offered SSA 1 for SA 1:

SENATE SUBSTITUTE AMENDMENT NO. 1

FOR SENATE AMENDMENT NO. 1