CCS/SS#2/SS/SCS/HS/HCS/HB 1304 - This act modifies provisions relating to claims for damages.

SUITS AGAINST NONPROFIT CORPORATIONS - 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 legal theory and 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 90 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 three 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 30 days after the expiration of 90 days of the demand being open, then the court shall not award prejudgement interest to the claimant.

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 any county within the judicial circuit where cause of action accrued. The judicial circuit where the cause of action accrued is defined to be the judicial circuit where the plaintiff was first injured by the wrongful acts of the defendant. 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 any county within the judicial circuit where an individual defendant resides or if there are one or two plaintiffs and either resided in Missouri on the date the cause of action accrued, any county within the judicial circuit where one of the plaintiffs resided on the date the cause of action accrued. For a corporate defendant, venue shall be in either any county within the judicial circuit where the registered agent is located or, if there are one or two plaintiffs and either resided in Missouri on the date the cause of action accrued, any county within the judicial circuit where one of the plaintiffs resided on the date the cause of action accrued. 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. 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 - The section is made applicable to tort actions for improper health care. "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.

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 the minor's 18th birthday.

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. This addition has the effect of making records of nursing home quality assessment and assurance committees privileged and inadmissible in court.

JOINT AND SEVERAL LIABILITY - Section 537.067 - In all tort actions, a defendant shall be jointly and severally liable for compensatory and noneconomic damages only with those defendants whose apportioned percentage of fault is less than the defendant. A defendant is only liable for their percentage of fault for punitive damages. A party whose uncollectible amount is reallocated shall be subject to contribution.

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 $400,000. There shall be no inflation adjustment. No plaintiff shall recover more than $400,000 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 applies to any person or entity that is a defendant in a lawsuit brought against a health care provider or that arises out of the 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. 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.

DAMAGE CAPS FOR TRAUMA CARE - Section 538.213 - Limits civil damages against certain physicians, dentists, hospitals and hospital employees to $200,000 for noneconomic damages in claims arising out of emergency room care. The limit does not apply to reckless, willful or wanton conduct.

PERIODIC PAYMENTS - Section 538.220 - Requires future medical payments to made in an amount according to a schedule determined by the payee's life expectancy. The court shall apply interest on future payments at an interest rate tied to the average auction price of a 52-week United States Treasury bill.

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 opinion of the health care provider is subject to review by the court upon request of a defendant in order to ensure that the health care provider meets the qualifications to offer such opinion. The health care provider offering the opinion must be licensed in substantially the same profession and authorized to practice in substantially the same specialty as the defendant. The time for filing the affidavit can extended for up to 90 days.

BENEVOLENT GESTURES - Section 538.227 - 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, 2004.

CHANGE OF VENUE - Section 3 - If a plaintiff or defendant is added or removed prior to trial which would, if originally added or removed to the initial petition, alter the determination of venue, then the judge shall transfer the case to a proper forum.

This act is similar to SB 1094 (2004) and SB 280 (2003).
JIM ERTLE