A bill that would impose stricter standards for the application of punitive damages was swiftly advanced by the Missouri Senate late last month. Senate Bill 591 would establish new procedural and substantive restrictions on punitive damages. Currently, to recover punitive damages in Missouri, a plaintiff must show by clear and convincing evidence that the defendant acted with either “indifference to or conscious disregard for the safety of others.” Schroeder v. Lester Cox Medical Center, Inc., 833 S.W.2d 411, 413 (Mo. Ct. App. 1992). Senate Bill 591, would increase the plaintiff’s burden of proof and require a plaintiff to prove that the defendant either “intentionally harmed the plaintiff without just cause” or acted with “deliberate and flagrant disregard for the safety of others.”
In addition to increasing the plaintiff’s burden of proof, the Bill also changes the procedure for prosecuting punitive damages claims. Under current Missouri law, a plaintiff may seek punitive damages in his/her initial pleading. Senate Bill 591 would prohibit a plaintiff from including a claim for punitive damages in his/her initial pleading, and require that the plaintiff first seek leave of court to assert a claim for punitive damages. The court shall grant leave only if it concludes that based on the evidence to be admitted at trial, the trier of fact could “reasonably conclude, based on clear and convincing evidence, that the standards for a punitive damages award … have been met.”
According to Senate Majority Leader and Columbia Republican, Caleb Rowden, “the punitive damages legislation is the top priority for Republicans among various proposals targeting liability lawsuits.” The Bill’s sponsor, Republican Bill White stated, “the Bill is intended to prevent punitive damage claims from being used as leverage to get bigger settlements from businesses in cases that might involve negligence but not intentionally malicious actions.”
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Data released by the Greater Kansas City Jury Verdict Service about jury trials in 2019 shows that results are broadly trending in favor of defendants. Defendants prevailed on almost 60% of the claims decided by KC-area juries last year, representing an improvement over their win rate in 2018. Calendar year 2019 also saw a drop of nearly 30% in the number of verdicts over $1,000,000, despite a modest increase in the total number of claims decided by juries.
Defendants Are Trying More Claims & Winning More Often
86 different juries in the Kansas City area decided a total of 181 claims in 2019 (with some cases involving multiple claims). 75 of those 181 verdicts (41%) resulted in some amount of recovery to the plaintiff(s), while 106 (59%) ended in defense verdicts.
Compared to 2018, this represents an increase of about 8% in the total number of verdicts handed down. Despite taking more claims to juries, defendants’ win rate improved by about 7% from the prior year, when roughly 52% of jury verdicts were for the defendant(s). This continues a trend from 2017, when defendants won roughly 51% of jury verdicts. From 2014-2016, plaintiffs’ win rate had been on the rise.
Big Verdicts Continue to Fall
The data contained other encouraging news for KC-area defendants and defense attorneys. When juries did award damages last year, the figures were generally smaller than they have been in recent years.
Last year saw 10 only verdicts of $1,000,000 or more in the Kansas City area, compared to 14 in 2018—a decrease of roughly 29%. In terms of percentages of all verdicts, million-dollar awards fell from 8.3% in 2018 to 5.5% in 2019. The proportion of six-figure jury awards held steady at about 17% (31 out of 181 verdicts in 2019, compared to 29 out of 168 in 2018). Awards of less than $100,000 accounted for about 19% of all verdicts in 2019.
Although the Average Amount Awarded Increased, Initial Impressions are Misleading
Although the value of the average plaintiffs’ verdicts grew by almost 25% ($2.26 million in 2019, compared to $1.81 million in 2018), a closer examination reveals that figure to be fundamentally misleading; the increase is entirely attributable to a single verdict of nearly $118 million handed down in a federal-court commercial dispute. While 2018 also had just one very large verdict, 2019’s outlier was roughly $42 million more than the 2018’s ($76 million). When each year’s lone outlier is set aside, the average amount awarded fell by 22%, from roughly $882,500 in 2018 to about $692,000 in 2019.
Keep in mind, too, that the figures above include only claims in which the verdict resulted in some amount of recovery for the plaintiff(s). When defense verdicts are factored into the equation, the average result for all claims decided by area juries in 2019 was an award of $934,000, compared to $873,000 in 2018 (a 7% increase). Once again setting aside each year’s single highest verdict, the average award for all claims decided by area juries in 2019 drops to just $284,624, compared to $423,150 in 2018 (a 32% decrease).
Juries in Missouri State Courts Prove Most Generous
State courts awarded 7 of the 10 million-dollar verdicts in 2019, most of which originated on the Missouri side of the state line: 4 in Jackson County, MO (Kansas City); 1 in Clay County, MO; 1 in Platte County, MO; 1 in Johnson County, KS; 2 in Missouri federal court (W.D. Mo.); and 1 in Kansas federal court (D. Kan.).
Of the 31 six-figure verdicts in the Kansas City area in 2019, 19 came from Jackson County, Missouri—7 in Kansas City and 12 in Independence. The remaining 12 were spread among Clay County, MO (5); Missouri federal court (W.D. Mo.) (3); Johnson County, KS (2); and Kansas federal court (2).
This tracks with the general feeling among local practitioners that Jackson County is by far the most plaintiff-friendly venue in the area, and that state courts tend to hand out bigger verdicts than federal courts.
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Attorneys: Douglas Hill
Supreme Court of Missouri Overturns $2.3 Million Negligent Credentialing Verdict but Grants New TrialFebruary 25, 2020 | John Mahon, Jr.
In a case of first impression, the Supreme Court of Missouri, in Thomas E. Tharp, et al. v. St. Luke’s Surgicenter-Lee’s Summit, LLC, overturned a $2.3M verdict and granted a new trial after the unusual step of holding a rehearing and vacating an earlier opinion.
In February 2019, the Court overturned a jury verdict in favor of a patient and his wife against a surgery center because there was no proof the surgery center negligently granted staff privileges to a surgeon. Though other Missouri courts had recognized the existence of a negligent credentialing cause of action, this opinion was the first from the Supreme Court of Missouri to address the essential elements of such a claim.
At the rehearing, the plaintiffs claimed they possessed additional evidence which, if presented upon retrial, would allow them to make a submissible case of negligent credentialing. This purportedly includes evidence of low scores the surgeon received on continuing medical education exams, thus suggesting an inability to retain essential knowledge necessary to competently perform surgery. This also purportedly includes evidence of the surgeon's litigation history showing he was sued more frequently as he aged, and expert witness testimony regarding the significance of the statistics. The Court did not take a position on the admissibility of this proffered new evidence, or its probative value (which is for a jury to decide), but the Court found this sort of evidence could possibly support a finding that the surgeon was incompetent or generally careless, which is the required standard for a negligent credentialing claim.
The Court said it decided to hold a rehearing and order a new trial because it would be manifestly unfair to deny the plaintiffs a new trial when they did not know and could not have known what evidence the Court would require to make a submissible case. Legal precedent requires remand for a new trial if the plaintiff's legal failure was caused not by a strategic decision, avoidable or invited error, but by an extrinsic factor outside the plaintiff's control. One such extrinsic factor is ignorance of the evidence necessary to support a cause of action when there is no statute or binding appellate precedent setting forth same. As mentioned above, though other Missouri courts have recognized the existence of a negligent credentialing cause of action, no court had addressed the essential elements or evidence required. Thus, the Court found the plaintiffs’ legal failure justifiable and not punishable in the absence of guidance from the Court.
This is the first ruling of its kind to provide guidance to Missouri lower courts and practitioners prosecuting or defending a negligent credentialing claim. These claims are difficult to prove, as they require proof beyond that which is required to support a direct medical negligence claim. Absent credible evidence of a physician’s incompetence generally, and the negligent failure of a healthcare facility to discover the incompetence and act accordingly, courts should dispose of these claims via dispositive motion. Further, it is not enough to prove that but for the credentialing, the physician could not have performed the conduct that produced the injury. Rather, a plaintiff must prove the injury was the natural and probable consequence of the physician’s incompetence.This opinion did not address whether the negligent credentialing theory conflicts with V.A.M.S. § 538.210.4 (2017), which provides, in part, that “[n]o health care provider whose liability is limited by the provisions of this chapter shall be liable to any plaintiff based on the actions or omissions of any other entity or individual who is not an employee of such health care provider . . . .” Negligent credentialing liability necessarily depends on negligent actions or omissions of a non-employee physician. In the event this argument is raised, it is unclear how the Court would address the apparent conflict of law.
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