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 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 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.

EVIDENCE OF MEDICAL BILLS - Section 490.715 - Parties may introduce evidence of the value of medical treatment rendered to a party. There shall be a rebuttable presumption that the dollar amount paid to the health care provider represents the value of the treatment rendered. Either party may ask the court, outside of the presence of the jury, to hear additional evidence to determine the value.

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 only in the county where the plaintiff first received treatment for a medical condition at issue. (Section 538.232). The act also repeals Sections 508.040 (venue for corporations), Section 508.070 (venue for motor carriers) and 508.120 (disqualification of judge and change of venue). The act provides that statutory venue provisions will prevail over any contrary Supreme Court Rules. (Section 508.011).

PUNITIVE DAMAGES - Sections 510.263 and 510.265 - This section is made applicable to tort actions involving 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. No award of punitive damages shall exceed the greater of $500,000 or five times the net amount of the judgment against the defendant. The limits do not apply if the state is the plaintiff or the defendant is convicted of a felony related to the underlying case or to certain cases involving housing.

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 two years from the minor's 18th birthday. 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. The disclosure of peer review documents to governmental agencies, accrediting agencies or other health care provider, whether proper or not, does not waive their non-discoverability or admissibility.

JOINT AND SEVERAL LIABILITY - Sections 537.067 and 538.230 -Provides for joint and several liability if a defendant bears 51% or more of the fault, but no joint and several liability if a defendant is less than 51% at fault. No joint and several liability for punitive damages. A party is responsible for payment of the proportionate share of an employee or if the liability is based on duty created by Federal Employers' Liability Act. Also, a party cannot disclose the impact of this section to the trier of fact. The act repeals current law regarding joint and several liability for health care providers and applies the changes in this act regard joint and several liability to health care providers.

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 calculated based on 110% of the weekly 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 annual 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 approximately $570,000 (adjusted from its base amount of $350,000 in 1986) to $350,000. There shall be no 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 applies to individuals and entities that provide, consult upon, refer, coordinate or arrange for health care services to the plaintiff and who is a defendant in a tort action involving improper health care. An individual or entity is not liable to plaintiff for actions of non-employees. The cap applies to claims for contribution. 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.

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 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.

At least 180 days after the filing of a petition, a defendant may file a request with the court that it examine in camera the opinion. If the opinion fails to meet the requirements of this section, then the court shall conduct a hearing within 30 days to determine if probable cause exists to believe that a health care provider will testify that the plaintiff was injured due to medical negligence by the defendant. If the court finds no probable cause, then the case will be dismissed and the plaintiff must pay the defendant's attorney fees and costs.

FREE CLINICS - Section 538.228 - A physician working without compensation from any party or third-party provider at a free clinic, a city or county health department or a combined city-county health department shall be immune from civil liability unless the conduct was grossly negligent or willful or wanton or the physician maintained liability insurance for the treatment at the time it was rendered. This immunity will not apply to the performance of abortions. In order to fall under the limited liability, the treatment must be certified in advance as being rendered free of charge with no compensation from any party or third-party provider, or any attempt to obtain compensation from a third-party provider. Coverage under the state legal expense fund is not considered as maintaining liability insurance.

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. Nothing shall prohibit the admission of a statement of fault.

APPLICATION OF CERTAIN SECTIONS TO TORTS FOR IMPROPER HEALTH CARE - Section 538.300 - Sections involving collateral source evidence, pleading requirements, punitive damages, joint and several liability and the tort victims compensation fund will apply to tort actions involving improper healthcare. Under current law, these sections do not apply to such tort actions.

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.

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 and SB 271 (2005) and TAT/SS/SCS/HS/HCS/HB 1304 (2004).

JIM ERTLE