COMMITTEE ON LEGISLATIVE RESEARCH
OVERSIGHT DIVISION
FISCAL NOTE
L.R. No.: 3029-06
Bill No.: SB 1094
Subject: Civil Procedure; Courts; Health Care; Health Care Professionals; Evidence;
Physicians; Liability; Attorneys
Type: Original
Date: January 26, 2004
FISCAL SUMMARY
| ESTIMATED NET EFFECT ON GENERAL REVENUE FUND
|
| FUND AFFECTED |
FY 2005 |
FY 2006 |
FY 2007 |
| General Revenue |
Unknown |
Unknown |
Unknown |
|
|
|
|
| Total Estimated
Net Effect on
General Revenue
Fund |
Unknown |
Unknown |
Unknown |
| ESTIMATED NET EFFECT ON STATE FUNDS
|
| FUND AFFECTED |
FY 2005 |
FY 2006 |
FY 2007 |
| Highway |
Unknown |
Unknown |
Unknown |
|
|
|
|
| Total Estimated
Net Effect on All
State Funds |
Unknown |
Unknown |
Unknown |
Numbers within parentheses: ( ) indicate costs or losses.
This fiscal note contains 7 pages.
| ESTIMATED NET EFFECT ON FEDERAL FUNDS
|
| FUND AFFECTED |
FY 2005 |
FY 2006 |
FY 2007 |
|
|
|
|
|
|
|
|
| Total Estimated
Net Effect on All
Federal Funds |
$0 |
$0 |
$0 |
| ESTIMATED NET EFFECT ON LOCAL FUNDS
|
| FUND AFFECTED |
FY 2005 |
FY 2006 |
FY 2007 |
| Local Government |
$0 |
$0 |
$0 |
FISCAL ANALYSIS
ASSUMPTION
Officials from the Office of Administration - Administrative Hearing Commission,
Department of Mental Health, Department of Labor and Industrial Relations, Department
of Health and Senior Services, Missouri Consolidated Health Care Plan, Department of
Insurance, and the Department of Conservation assume the proposed legislation would have
no fiscal impact on their agencies.
Officials from the Office of State Courts Administrator assume the proposed legislation would
have no fiscal impact on the courts.
Officials from the Office of Administration - Division of General Services/Risk Management
assume the proposed legislation has the potential for savings from the prejudgment interest
provisions as well as the provisions addressing venue for tort actions and the provisions enacting
limits of liability regarding joint and several liability. The amount of savings cannot be
determined at this time.
ASSUMPTION (continued)
Officials from the Department of Transportation (MoDOT) assume the changes to §537.067,
which provide a defendant is not to be held jointly and severally liable for more than the
percentage fault attributed to such defendant, could be advantageous to the Missouri Highways
and Transportation Commission (MHTC)/MoDOT. However, MoDOT is not able to determine
an accurate estimate as the benefit of this revision would depend upon the number of cases
impacted, the potential liability of MHTC in such cases, and other related factors.
There are additional provisions relating to venue, as well as a new §537.072, which requires the
court to establish a discovery period after which the action would be referred to mediation
(unless the court provides written findings that mediation would have no chance of success).
These provisions could also result in some positive fiscal impact to MoDOT and the MHTC, but
the amount is unknown.
Officials from the Office of Attorney General did not respond to Oversight's request for fiscal
impact. However, in response to similar legislation from a previous session, officials assumed
the costs of the proposed legislation could be absorbed within existing resources.
| FISCAL IMPACT - State Government |
FY 2005
(10 Mo.) |
FY 2006 |
FY 2007 |
| GENERAL REVENUE FUND |
|
|
|
|
|
|
|
| Savings - Office of Administration |
|
|
|
| Liability limits/venue changes |
Unknown |
Unknown |
Unknown |
|
|
|
|
| ESTIMATED NET EFFECT ON
GENERAL REVENUE FUND |
Unknown |
Unknown |
Unknown |
|
|
|
|
|
|
|
|
| HIGHWAY FUNDS |
|
|
|
|
|
|
|
| Savings - Department of Transportation |
|
|
|
| Liability limits/venue changes |
Unknown |
Unknown |
Unknown |
| |
|
|
|
| ESTIMATED NET EFFECT ON
HIGHWAY FUNDS |
Unknown |
Unknown |
Unknown |
|
|
|
|
|
|
|
|
| FISCAL IMPACT - Local Government |
FY 2005
(10 Mo.) |
FY 2006 |
FY 2007 |
|
|
|
|
|
$0 |
$0 |
$0 |
FISCAL IMPACT - Small Business
No direct fiscal impact to small businesses would be expected as a result of this proposal.
DESCRIPTION
The proposed legislation would modify provisions relating to tort reform:
- INTEREST ON JUDGEMENTS (§408.040) - Prejudgement interest would be 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 would
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, contain authorization to allow the other party to obtain employment and
medical records, and be left open for 90 days. The trial court would determine whether
prejudgement interest is awarded. Claims for prejudgement and post-judgment interest in
tort actions would be calculated at a interest rate tied to the auction price for 52 week
U.S. Treasury bills.
- EXPERT WITNESS TESTIMONY (§490.065) - The proposal would adopt language
contained in Federal Rules of Evidence that allows expert testimony if the testimony is
based upon sufficient facts or data, is the product of reliable principles and methods, and
the witness has applied the principles and methods reliably to the facts of the case.
- VENUE (§508.010) - Would require that venue in all tort actions, including torts for
improper healthcare, be only be in county where cause of action accrued. If the cause did
not accrue in Missouri, then venue would be in the county where the defendant resides.
The residence of a corporation would be where the registered agent of the corporation
maintains an office. Venue in suits against not-for-profit corporations would be in the
county where the cause of action accrues or the county where the office of the registered
agent is maintained. The proposal would also repeal sections 508.040 (venue for
corporations) and 508.070 (venue for motor carriers).
DESCRIPTION (continued)
- PUNITIVE DAMAGES (§510.263) - A jury would be required to find that a defendant's
actions or omissions were willful, wanton or malicious by clear and convincing evidence
in order to have a submissible case for punitive damages. "Punitive damage award"
would be 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 could occur
after the trial court would find the plaintiff has a submissible case for punitive damages.
- STATUTE OF LIMITATIONS IN ACTIONS AGAINST HEALTH CARE PROVIDERS
(§516.105) - A minor less than six years of age would have until his 8th birthday to bring
cause of action. Currently, a person less than 18 years of age has until the age of 20 to
bring the action.
- JOINT AND SEVERAL LIABILITY (§537.067) - Repeal the current doctrine of joint
and several liability and limits liability in all tort actions, including tort actions based on
improper health care, to the percentage of fault attributed to each defendant by the trier of
fact. The proposal would repeal Section 538.230, which created a separate comparative
fault statute for tort actions involving improper health care.
- MEDIATION (Section 537.072) - Require mediation in all tort cases except where judge
finds no chance of success.
- DEFINITION OF "HEALTH CARE PROVIDER" (§538.205) - Include long term care
facilities licensed under Chapter 198, RSMo, professional corporations, business
corporations and any other person or entity that provides health care services through one
or more employees possessing a license or certificate.
- MEDICAL MALPRACTICE NONECONOMIC DAMAGES CAP (§538.210) - Cap on
noneconomic damages for all plaintiffs is lowered from $350,000 to $250,000 per cause
of action and provision that subject cap to periodic inflation increases would be removed.
This section would also remove 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. No hospital or health care provider would be liable for actions of entity or
person who is not an employee of such hospital or health care provider. All persons and
entities asserting a wrongful death claim would be considered one plaintiff.
DESCRIPTION (continued)
- DAMAGE CAPS FOR TRAUMA CARE (§538.213) - Limit civil damages against
certain physicians, dentists, hospitals and hospital employees to $150,000 in claims
arising out of emergency room care. The limit would not apply to grossly negligent or
reckless, willful or wanton conduct.
- AFFIDAVIT OF MERIT (§538.225) - Require 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 would be
required to state the names and addresses of all health care providers offering the opinion.
The expert would be required to be licensed in the same profession and substantially the
same specialty as the defendant. The time for filing the affidavit could be extended for up
to 90 days.
- BENEVOLENT GESTURES (§538.227) - Prohibit statements, writings, or benevolent
gestures expressing sympathy made to the person or to the family of the person from
being admitted into evidence.
- PEER REVIEW RECORDS (§538.301) - Records of certain quality assessment and
assurance committees would be confidential and not subject to legal compulsion nor use
in any proceeding. Persons would not be liable for good faith decisions regarding such
committees. Persons could not be compelled to testify regarding such documents.
- SEVERABILITY (Section 1) - The proposal contains a severability clause.
- EFFECTIVE DATE OF ACT (Section 2) - The act would only apply to cases filed after
August 28, 2004.
This legislation is not federally mandated, would not duplicate any other program and would not
require additional capital improvements or rental space.
SOURCES OF INFORMATION
Office of Administration
- Administrative Hearing Commission
- Division of General Services/Risk Management
Office of State Courts Administrator
Department of Transportation
Department of Mental Health
Department of Health and Senior Services
Department of Labor and Industrial Relations
Missouri Consolidated Health Care Plan
Department of Insurance
Department of Conservation
NOT RESPONDING
Office of Attorney General
Mickey Wilson, CPA
Director
January 26, 2004