Missouri Senate

Senate Committee Substitute

SUITS AGAINST NONPROFIT CORPORATIONS - Section 355.176 - The act repeals and reenacts Section 355.176 regarding services of process in suits against nonprofit corporations.

INTEREST ON JUDGEMENTS - Section 408.040 - Prejudgement interest is calculated 90 days after the demand or offer is received by certified mail return receipt. Currently, it is calculated 60 days after the demand or offer is made. Such demands and offers must be in writing; accompanied by an affidavit from the claimant covering the damages claimed; list the medical providers of the claimant, include other medical information and contain authorization to allow the other party to obtain employment and medical records; and be left open for 60 days. The trial court shall award prejudgement interest if the conditions of this section are met. Claims for prejudgement interest in tort actions shall be calculated at an interest rate tied to the Federal Funds Rate, as established by the Federal Reserve Board, plus four percent. Claims for post-judgement interest in tort actions shall be calculated at an interest rate tied to the Federal Funds Rate plus five percent. If a claimant fails to file suit in circuit court within 120 days after the demand was received, then the court shall not award prejudgement interest to the claimant. The judgment shall state the applicable interest rate, which shall not vary once entered.

VENUE - Section 508.010 - Where the cause of action accrues in Missouri, venue in all tort actions, including torts for improper healthcare, shall only be in the county where cause of action accrued. If the cause did not accrue in Missouri, then venue depends on whether there is an individual or corporate defendant. For an individual defendant, venue shall be in the county where an individual defendant resides or if the plaintiff resided in Missouri at the time the plaintiff was first injured, the county of the plaintiff's principal residence when the plaintiff was first injured. For a corporate defendant, venue shall be in either the county where the registered agent is located or, if the plaintiff resided in Missouri on the date of first injury, then the county containing the plaintiff's principal residence.

Motions to dismiss or to transfer based on a claim of improper venue shall be granted if not denied within 90 days of filing, unless the time period is waived by all parties.

In a wrongful death action, the plaintiff is considered first injured where the decedent was first injured by the wrongful acts of the defendant. These venue provisions will apply to both for-profit and non-profit entities. If the parties agree to a change in venue, then the court shall transfer to such county, provided that if other parties are added who do not consent, then the venue shall be transferred to an appropriate county. In medical malpractice tort actions, the plaintiff shall be considered injured in the county where the plaintiff was first examined for the medical condition at issue. (Section 538.232). The act also repeals Sections 508.040 (venue for corporations), 508.070 (venue for motor carriers) and 508.120 (disqualification of judge and change of venue).

PUNITIVE DAMAGES - Section 510.263- "Punitive damage award" is defined to include an award for punitive or exemplary damages as well as an award for aggravating circumstances. Discovery of a defendant's assets only can occur after the trial court finds the plaintiff will have a submissible case for punitive damages.

SUPERSEDEAS BONDS - Section 512.099 - This section limits the amount of a supersedeas bond to $50 million in all cases in which there is a count alleging a tort.

STATUTE OF LIMITATIONS IN ACTIONS AGAINST HEALTH CARE PROVIDERS - Section 516.105 - Currently, in no event may a suit be commenced after ten years from a minor's 20th birthday. The act changes it to five years from the minor's 18th birthday, if the act of neglect was reasonably discoverable. The statute of limitations with regard to failure to inform on test results does not include the act of informing the patient of results of negligently performed or erroneous medical tests.

PEER REVIEW COMMITTEES (Section 537.035) - Authorizes the appointment of a peer review committee by the board of trustees or chief executive officer of a long-term care facility licensed under Chapter 198, RSMo. A peer review committee may be comprised of, and appointed by, employed health care professionals of a university. Interviews and memoranda of peer review committees are privileged.

JOINT AND SEVERAL LIABILITY - Section 537.067 - The act provides for joint and several liability for compensatory and noneconomic damages if a defendant bears 15% or more of the fault, but no joint and several liability for punitive damages.

WRONGFUL DEATH ACTIONS - Section 537.090 - For purposes of determining damages, if the deceased was not employed full time and was at least 50% responsible for the care of a minor, disabled or elderly person, then there shall be a rebuttable presumption that the value of the care provided is equal to 110% of the state average weekly wage. If the decedent was a minor, there is a rebuttable presumption that the pecuniary loss suffered by the death are calculated based on the income of the parents.

DEFINITION OF "HEALTH CARE PROVIDER" - Section 538.205 - Includes long term care facilities licensed under Chapter 198, RSMo. The definition of "punitive damages" shall include exemplary damages and damages for aggravating circumstances.

MEDICAL MALPRACTICE NONECONOMIC DAMAGES CAP - Section 538.210 - Cap on noneconomic damages for all plaintiffs is lowered from its current inflation-adjusted cap of $565,000 (adjusted from its base amount of $350,000 in 1986) to $350,000. There shall be an inflation adjustment. No plaintiff shall recover more than $350,000 regardless of the number of defendants. This section also removes the words "per occurrence" to ensure a single cap and not multiple caps per incidents of medical malpractice as held by the court in Scott v. SSM Healthcare. The cap does not apply to non-health care provider defendants or to willful, wanton or malicious conduct. Any spouse claiming loss of consortium shall be considered the same plaintiff as their spouse. All persons and entities asserting a wrongful death claim are considered one plaintiff.

AFFIDAVIT OF MERIT - Section 538.225 - Requires a court to dismiss any medical malpractice claim where the plaintiff fails to file an affidavit stating that he or she has obtained the written opinion of a legally qualified health care provider which states that the defendant failed to use reasonable care and such care caused plaintiff's damages. Currently, it is within the court's discretion to dismiss the case. The affidavit must state the name and address of the health provider offering the opinion. The health care provider offering the opinion must be licensed in the same profession and either practicing or within five years of retirement of practice in substantially the same specialty as the defendant. The time for filing the affidavit can be extended for up to 90 days.

BENEVOLENT GESTURES - Section 538.229 - Prohibits statements, writings or benevolent gestures expressing sympathy made to the person or to the family of the person from being admitted into evidence.

SEVERABILITY - Section 1 - Adds severability clause.

EFFECTIVE DATE OF ACT - Section 2 - Provides that the act shall apply to all cases filed after August 28, 2005.

This act is similar to and SB 271 (2005) and TAT/SS/SCS/HS/HCS/HB 1304 (2004).

JIM ERTLE