HCS HB 393 -- TORT REFORM (Byrd)

This substitute changes the laws regarding claims for damages and
the payment thereof.  In its main provisions, the substitute:

(1)  Establishes venue in all tort actions in which the cause of
action occurred in a Missouri venue that is in any county where
the plaintiff was first injured by the wrongful acts or negligent
conduct alleged in the action;

(2)  Establishes venue in all tort actions in which the cause of
action occurred outside Missouri:

(a)  For corporate defendants, in any county where the registered
agent is located or, if the plaintiff's principal place of
residence was in the state of Missouri when the plaintiff was
first injured, in any county containing the plaintiff's principal
place of residence on the date the plaintiff was first injured;
and

(b)  For individual defendants, in any county of the defendant's
principal place of residence in Missouri or, if the plaintiff's
principal place of residence was in Missouri when the plaintiff
was first injured, in any county containing the plaintiff's
principal place of residence on the date the plaintiff was first
injured;

(3)  Specifies that in wrongful death actions the plaintiff is
considered first injured where the decedent was first injured by
the wrongful acts or negligent conduct alleged in the action;

(4)  Specifies that in a spouse's claim for loss of consortium
the plaintiff claiming consortium is considered first injured
where the other spouse was first injured by the wrongful acts or
negligent conduct alleged in the action;

(5)  Specifies that the court must transfer venue to the county
unanimously chosen by the parties if all parties agree in writing
to a change of venue.  If parties are added after the date of
transfer and they do not consent to the transfer, the cause of
action will be transferred to a county in which venue is
otherwise appropriate;

(6)  Requires prejudgment interest to be calculated 90 days after
the demand or offer is received by certified mail, return receipt
requested.  The demand or offer must be in writing, be
accompanied by an affidavit from the claimant describing 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;

(7)  Specifies that claims for prejudgment and post-judgment
interest in tort actions are calculated at an interest rate that
is equal to the intended Federal Funds Rate plus 3% for
prejudgment interest and 5% for post-judgment interest;

(8)  Allows parties to introduce evidence of the value of medical
treatment rendered to a party that was reasonable, necessary, and
a proximate result of the negligence of any party.  There is a
rebuttable presumption that the dollar amount necessary to
satisfy the financial obligation to the health care provider
represents the value of the treatment rendered.  The court can
determine, outside the hearing of the jury, the value of medical
treatment rendered based on additional evidence;

(9)  Defines "punitive damage award" to include an award for
punitive or exemplary damages as well as an award for aggravating
circumstances;

(10)  Allows discovery of a defendant's assets only after the
trial court finds that the plaintiff will have a submissible case
for punitive damages;

(11)  Limits an award for punitive damages to the greater of
$250,000 or three times the net amount of the judgment awarded to
the plaintiff against the defendant;

(12)  Eliminates joint and several liability and specifies that
the liability of each defendant is several only and not joint
unless otherwise provided in actions in which there is a count
alleging personal injury, emotional distress, property damage, or
wrongful death and claims for improper health care.  A party is
responsible for the fault of another person or for payment of the
proportionate share of another person if the other person was
acting as an employee of the party or if the party's liability
for fault of another arises out of a duty created by the Federal
Employers' Liability Act;

(13)  Includes long-term care facilities licensed under Chapter
198, RSMo, and manufacturers, wholesalers, or licensed
distributors of drugs or devices approved by the federal Food and
Drug Administration in the definition of "health care provider."
Exemplary damages and damages for aggravating circumstances are
included in the definition of "punitive damages";

(14)  Lowers the cap on non-economic damages for all plaintiffs
to $250,000, irrespective of the number of defendants;

(15)  Requires future medical payments to be made in an amount
according to a schedule determined by the payee's life
expectancy.  The court must apply interest on future payments at
an interest rate equal to the average auction price of a 52-week
United States Treasury bill;

(16)  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 that caused the plaintiff's damages.
Currently, the court gives discretion as to whether or not to
dismiss a claim under these circumstances;

(17)  Allows a defendant to file a motion 120 days after the
filing of the petition asking the court to examine the opinion of
the health care provider.  If the opinion fails to meet the
requirements specified in the substitute, the court must conduct
a hearing within 30 days to determine whether there is probable
cause to believe that one or more qualified and competent health
care providers will testify that the plaintiff was injured
because of the medical negligence of the defendant.  If the court
finds no probable cause, the court can dismiss the petition and
hold the plaintiff responsible for the defendant's reasonable
attorney fees and costs;

(18)  Prohibits statements, writings, or benevolent gestures
expressing sympathy made to the person or the family from being
admitted into evidence;

(19)  Specifies, for purposes of determining venue, that in any
action against a health care provider for damages for personal
injury or death arising out of the rendering of or failure to
render health care services, the plaintiff will be considered
injured by the health care provider in the county where the
plaintiff was first examined for the medical condition at issue
in the case;

(20)  Limits the amount of a supersedeas bond to $25 million in
all cases in which there is a count alleging a tort;

(21)  Specifies that costs that may be assessed in civil actions
include reasonable fees for travel, expert witnesses,
videotaping, and photocopying.  Parties are allowed to make a
post-trial challenge as to the reasonableness and necessity of
the fees;

(22)  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;

(23)  Specifies that the judge will transfer the case to a proper
forum if a plaintiff or defendant is added or removed prior to
trial which would alter the determination of venue if originally
added or removed; and

(24)  Specifies that the provisions of the substitute, except for
Section 512.099, apply to all causes of action filed after August
28, 2005.

FISCAL NOTE:  No impact on General Revenue Fund in FY 2006, FY
2007, and FY 2008.  Estimated Effect on Other State Funds of a
Cost of Unknown to an Income of Unknown in FY 2006, FY 2007, and
FY 2008.

Missouri House of Representatives
93rd General Assembly, 1st Regular Session
Last Updated August 25, 2005 at 1:19 pm