Tort Reform: Not Just for Doctors

by Lisa A. Weixelman

Big verdicts are a problem not only for doctors but for all civil defendants. For too long, Missouri laws have failed to provide a balanced forum to civil litigants. Courts that favor claimants discourage business growth.

Most everyone has read or heard about the medical malpractice crisis in Missouri--soaring malpractice insurance rates resulting in physicians quitting practice in Missouri and related patient-care shortages. Many attribute the rise in insurance premiums to big plaintiff verdicts awarded by juries in medical malpractice cases. This trend has prompted Missouri lawmakers to consider tort reform legislation that would limit the size of verdicts through caps on awards for non-economic damages and change of venue law to require that suit be filed where the cause of action occurred.

Big verdicts, however, are a problem not only for doctors but for all civil defendants. Analysis of the ten largest verdicts awarded by Missouri juries in each of the last five years shows that 35 of those 50 verdicts were returned in cases tried in Jackson County or the City of St. Louis Circuit Courts. Those 35 verdicts alone collectively total $2,936,668,000. If you disregard $2 billion of that amount, which was related to the William Courtney case, only a few of the nearly $1 billion in verdicts that remains went toward medical malpractice injuries.

Adding to the burden created by large verdicts, a relatively unique component of Missouri law makes one defendant responsible for payment of the entire judgment, regardless of the defendant's degree of responsibility for the damages involved, whenever multiple defendants in the case are joint and severally liable for the damage. Many states, Missouri included, provide for allocation of fault among the parties. In Missouri, known as a pure comparative fault state, the plaintiff can recover damages according to the percentage of fault attributed to the defendants. Joint and several liability allows the plaintiff to collect the entire judgment awarded from any one defendant who is assessed a percentage of fault, not just that share of the judgment attributed to the fault of that particular defendant. Under joint and several liability, a defendant found only 1 percent at fault may have to pay the entire judgment with its only remedy to attempt collection of the amount paid from the other responsible defendants.

Large jury verdicts are a cost of doing business with a direct impact on profitability. A business that chooses not to locate in Missouri in order to reduce its exposure to large verdicts impacts the Missouri economy. Laws designed to limit venue shopping and a defendant's responsibility to damages apportioned to it can help to improve the bottom line and make Missouri a better place to do business.

Recognizing the need to promote business growth in Missouri by providing a more balanced system for recovery of compensation, state lawmakers have introduced legislation to address venue and joint and several liability. The proposed legislation applies not only to doctors but to all civil defendants. Current proposed legislation would simplify existing laws and eliminate venue shopping by establishing venue for Missouri residents in the county where the cause of action occured. For suits involving claims outside the state, a lawsuit can be filed against an individual defendant in the county where he or she resides and against a corporation in the county where its registered agent is located.

These statutory revisions eliminate the practice of including a defendant in the suit in order to establish venue in a forum of choice. The law, as it relates to joint and several liability, is also modified so that a defendant will be jointly and severally liable for the amount of the compensatory, and noneconomic damages portion of the judgment entered against multiple defendants only if such defendant is found to bear 50 percent or more of fault. Under the proposed amendment, a defendant won't be jointly and severally responsible for more than the percentage of punitive damages attributed to that defendant.

For too long, Missouri laws have failed to provide a balanced forum to civil litigants. Courts that favor claimants discourage business growth. Last year, the Missouri legislature passed a bill that provided for broad-based tort reform, including medical malpractice reform. Governor Holden vetoed that legislation. This session, legislators are once again considering the issue. If passed into law, it can balance state courts and once again provide equal justice, not just for doctors but for all civil litigants.

Lisa A. Weixelman is an attorney at Polsinelli Shalton & Welte PC. She can be reached at 816.753.1000 or by e-mail at lweixelman@pswlaw.com.

More info on proposed House Bill No.1304 is available at http://www.moga.state.mo.us/.