|SB 0706||Enacts various medical malpractice measures|
|LR Number:||2892S.02I||Fiscal Note:||2892-02|
|Committee:||Judiciary and Civil & Criminal Jurisprudence|
|Last Action:||01/26/04 - Hearing Conducted S Judiciary & Civil & Criminal||Journal page:|
|Effective Date:||August 28, 2004|
SB 706 - The act revises provisions relating to medical malpractice.
TAX CREDITS - A tax credit is allowed, up to $10,000, for 10% of the increase in amounts paid for medical malpractice insurance premiums from one policy year to the next immediate policy year. The credit expires on December 31, 2008.
MEDICAL MALPRACTICE INSURANCE RATES - Insurance companies are prohibited from increasing or modifying existing premiums or canceling policies until such time as new rate filings are approved by the department of insurance.
The act requires the director of the department of insurance to approve or disapprove rates for medical malpractice insurance. The act sets out factors for the director to consider including the Missouri loss experience, rather than the loss experience in other states unless the failure to do so would jeopardize the insurer's financial stability. The Director must also ensure that the rates reflect the impact of any state and federal legislation regarding tort reform or medical malpractice insurance. The Director must approve or disapprove rate filings within 60 days unless additional time is needed based on applicant's failure to provide information.
PATIENT COMPENSATION FUND - The Missouri Patients' Compensation Fund is created in order to pay that portion of a medical malpractice claim which is in excess of the minimum liability limits established by the newly created Patients' Compensation Board or the maximum liability limits of the health care provider's insurance policy. The Fund is not liable for intentional crimes or punitive damages. The Board shall also establish by rule the maximum amount recoverable from the Fund. The Board shall be comprised of physician, attorney, insurance industry, hospital and general public representatives and the Director of the Department of Insurance. The Governor, with the advice and consent of the Senate, shall appoint all members. All licensed Missouri health care providers must participate in the fund. The amount of membership fees and surcharges shall be determined by the Board. The Board shall set minimum liability limits for each medical malpractice insurance policy by rule.
STATUTE OF LIMITATIONS - The act modifies the exception to the two-year statute of limitations in cases involving minors. Currently, a minor under 18 years of age has until his or her 20th birthday to bring suit. The act provides that a minor less than 12 years of age has until his or her 14th birthday to bring suit.
NON-ECONOMIC DAMAGE CAPS - 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, 2004. A plaintiff may recover up to $700,000 in noneconomic damages where the damages suffered by the plaintiff were for: (1) wrongful death, (2) permanent and substantial physical deformity, loss of use of a limb or loss of a bodily organ system, or (3) permanent physical or mental functional injury that permanently prevents the injured person from being able to independently care for himself or herself and perform life sustaining activities.
JOINT AND SEVERAL LIABILITY - Only in medical malpractice actions, the act requires the court to enter judgment against each liable party based on their percentage of fault and on the principle of joint and several liability up to certain dollar amounts depending on the fault of the plaintiff and the percentage fault of the defendant.
AFFIDAVIT OF MERIT - 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 - 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.
THIRD PARTY ACTIONS - The act prohibits suits against health care providers by or on behalf of a third party nonpatient for rendering health care services to a patient whose subsequent act is a proximate cause of injury or death to the third party unless the care provided was in willful and wanton or reckless disregard of a foreseeable risk of harm to third persons.
This act is similar to SB 280 (2003), SB 257 (2003) and SB