Senate committee hears two proposals to change damage awards

It might have been called "Businesses vs. Attorneys" at a committee hearing this week on two bills intended to change the way that damages are awarded in lawsuits.

The Missouri Senate's Small Business, Insurance and Industry Committee on Tuesday was asked to endorse bills that would change how damages are calculated in medical lawsuits, and how they are paid when more than one defendant is found liable.

Current state law on damages awards is based on the theory of "joint and several liability."

"The purpose of joint and several liability, which is a long-standing principle of civil jurisprudence - it's been the law for decades," said Kirksville attorney Jay Benson, "is to put the plaintiff in a position to get fair compensation from all."

A board member of the Missouri Association of Trial Attorneys, Benson spoke against legislation proposed by Sen. Mike Parson, R-Bolivar.

Parson told the committee his bill would make defendants liable only for the percentage of a damages award equalling their part in causing the damages.

"If you're a business owner or a private individual, and you're declared to be 51 percent at fault and the other person's at 49, you would only be responsible for 51 percent (of the damages award)," he explained. "They can't come after you just because you have more money than the other person, and make you pay his portion of it, too."

Lobbyist Richard Brownlee, representing State Farm Insurance, the Missouri Insurance Coalition and the American Insurance Association, told the committee Parson's bill "is incredibly and fundamentally fair."

And Jay Atkins, general counsel and lobbyist for the Missouri Chamber of Commerce, testified: "The business community and the Chamber certainly support moving towards a fair-share or proportional liability doctrine."

But, Benson countered, Parson's bill "prevents fair compensation to innocent victims of negligence. It protects insurance companies. It protects the manufacturers of defective products.

"But it would have devastating impact on innocent victims of negligence."

Committee members also heard from state Sen. Ed Emery, R-Lamar, who wants to change the wording in state law after a recent court decision caused confusion about what amount juries should be consider as damages in a medical claims case.

"This bill removes "value,' replaces it with "cost,' and then defines "cost' as what you actually paid for the medical services," Emery explained.

Kristen Cardenas, a lawyer and assistant vice chancellor at Washington University, told the committee that, under current state law, "juries can be presented with the provider's original, gross charges as evidence of the "value' of medical services - allowing plaintiffs to recover not only the amount paid for the services, but these "phantom' damages or write-off amounts.

"Essentially, plaintiffs are allowed to recover damages that don't actually exist."

Emery's bill would change it so that juries would be told only what a plaintiff actually paid for the procedure.

But St. Louis lawyer Ken Vuylsteke, MATA's president-elect, countered that changing the law would not benefit the patient who had been injured and took the case to court.

"If there's any windfall, this bill gives it to the negligent or intentionally injuring party," Vuylsteke testified. "The only person who gets made whole on this is the health insurance carrier for the injured person," because federal laws generally require the carrier to be paid back.

Committee members took no action on either bill this week.