House bills would make malpractice lawsuits harder to win

Tuesday , March 13, 2018 - 6:56 AM

Kristoffer Tigue

JEFFERSON CITY — The Missouri House of Representatives took testimony Monday morning on a series of bills that could make it harder for people to receive damages when suing hospitals or other health-care providers for malpractice.

The bills would revise or replace language in three Missouri laws, which supporters say will make the legal process fairer for all parties and help reduce unwarranted and pricey lawsuits. Opponents say the bills will make the process less fair by giving plaintiffs less time to build their cases, and by significantly raising the bar for those seeking punitive damages in malpractice suits.

Monday’s hearing drew heated exchanges between supporters of the bills and some committee members. Both Rep. Mark Ellebracht, D-Liberty, and Rep. Steven Roberts, D-St. Louis, expressed significant reservations with HB 2434 in particular.

That bill, introduced by Missouri Rep. Bill White, R-Joplin, would redefine “punitive damages” under state law. Missouri defines punitive damages as “damages intended to punish or deter willful, wanton or malicious misconduct.” Under White’s bill, however, that language would be replaced by “malicious misconduct or conduct that intentionally caused damage to the plaintiff.”

That’s the problem with the bill, said Genevieve Nichols, a St. Louis attorney who deals with malpractice and injury claims, because proving intent is incredibly difficult in court.

“Under the language, as it is written, you could not get punitive damages against a doctor who was drunk during a surgery because he did not mean to hurt anybody,” she told House members Monday.

Dana Frese, who represents several Missouri hospitals through the insurance company Healthcare Services Group, said the bill was necessary to help struggling Missouri hospitals and clinics, particularly in poorer rural areas, from facing expensive lawsuits because of “one-off” mistakes committed by their health-care workers.

Under the new language, Frese said, plaintiffs would have to show it wasn’t just a mistake on the health-care worker’s part, but part of a larger pattern or practice of malfeasance.

But Roberts said those are exactly the kinds of distinctions that are meant to be determined in the courtroom, not by legislators. “Isn’t the court the proper place to work that out?” he said.

Changing state tort laws

Monday’s hearing is part of a larger pattern to modify Missouri’s tort laws — or any statute that deals with lawsuits alleging harm caused to an individual — and comes just days after the House passed another bill that would add further requirements for those filing lawsuits concerning asbestos.

The other two bills introduced Monday also dealt with changing language in state tort law.

The first bill, HB 1793, sponsored by Rep. Craig Redmon, R-Canton, would create a window of 180 days for a lawsuit to proceed within after it has been initially filed, and after the statute of limitation has expired. The other bill, HB 2108, introduced by Rep. Curtis Trent, R-Springfield, would explicitly prohibit malpractice lawsuits from being filed under the Merchandising Practices Act (MPA). That act helps consumers seeking relief for deceptive and unfair practices, according to the Missouri Bar Association.

Frese, who testified in favor of all three bills, said MPA never was meant to be used to recover damages for lawsuits dealing with injury or death, and that those using the law to that end are abusing its purpose.

Ellebracht said those cases were uncommon, and current law already prevents malpractice lawsuits from using MPA successfully, so changing the language would be redundant.

But Frese said those cases still are making it into court, even if they are not successful, and attorney fees are not cheap. “Guess what? It costs money to file a motion to dismiss,” he said.

Supervising editor is Mark Horvit, horvitm@missouri.edu.

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