BSCR Firm News/Blogs Feed Oct 2021 00:00:00 -0800firmwise Court of Missouri Upholds Constitutionality of Noneconomic Damage Cap in Case Against Healthcare Provider Aug 2021Healthcare Law Blog<p>The Supreme Court of Missouri, in a case filed against a healthcare provider defendant, has <a href="">upheld</a> the constitutionality of Missouri&rsquo;s statutory noneconomic damage cap.&nbsp; The <i>Velazquez v. University Physician Associates</i> case had been closely monitored by various stakeholders, because the case has significant implications for patients and healthcare providers, as well as other litigants. The Court also analyzed another important cap related issue in determining which cap year is appropriate to apply the statutory cost of living escalator to account for inflation.</p> <p>Procedurally, the case involved cross-appeals from plaintiff as to the trial court&rsquo;s reduction of damages, and the healthcare provider defendants&rsquo; appeal of the plaintiff verdict on several grounds.&nbsp; The plaintiff had alleged negligence in the cesarean delivery of her child and in her postpartum care.&nbsp; The jury found in plaintiff&rsquo;s favor, allocating 100% of fault to the physician defendants.&nbsp; The jury awarded $30,000 in economic damages and $1 million in noneconomic damages.&nbsp; The trial court granted the physicians&rsquo; Motions for Remittitur asking the court to reduce the total noneconomic damage award to $400,000.&nbsp; The plaintiff opposed these Motions by making a constitutional objection and arguing that the higher noneconomic damage cap amount for &ldquo;catastrophic&rdquo; personal injury applied.&nbsp; The trial court did not find the noneconomic damage caps to be unconstitutional and agreed with plaintiff that the higher cap amount applied, thereby reducing the noneconomic damage award from $1M to $748,828 (using the 2019 cap year because that was the trial year).</p> <p align="center"><u>The Noneconomic Damage Caps Do Not Violate<br /> the Missouri Constitution's Right to Trial by Jury</u></p> <p>On appeal, plaintiff argued the noneconomic damage caps violated her constitutional right to trial by jury as it existed at common law before the State Constitution&rsquo;s first adoption in 1820. The Court addressed and rejected this same argument in the 2012 <i>Sanders v. Ahmed</i> decision, where the Court held that wrongful death is a statutory cause of action that did not exist at common law, and therefore the Legislature has the power to define the remedy available (and impose damage caps) since it created the cause of action.&nbsp; The <i>Sanders</i> decision reached the opposite conclusion of the 2012 <i>Watts v. Lester E. Cox Medical Center </i>case, in which the Court declared the noneconomic damage caps unconstitutional in medical negligence actions because they were common law claims rather than statutory claims.&nbsp;</p> <p>The <i>Velazquez</i> Court found that <i>Watts</i> did not control because in 2015, the Legislature amended certain statutes to provide a new statutory cause of action to replace the common law claim for damages against a healthcare provider.&nbsp; The Court found the Legislature has the authority to abolish common-law causes of action, as it had done before when it abolished certain common-law negligence claims against employers by enacting a statutory workers&rsquo; compensation scheme.&nbsp; Thus, because all medical negligence actions are now statutory causes of action, and the Legislature has the authority to enact statutory noneconomic damage caps, the current noneconomic damage caps do not violate the constitutional right to trial by jury.</p> <p>Judge Draper was the lone dissenter from the Court&rsquo;s ruling, arguing that the principal opinion provides the Legislature with unfettered authority to limit the constitutional right to trial by jury through hostile legislation when, in fact, Missouri voters are the only ones with the power to change the Constitution.&nbsp; In his view, the 2015 statutory revisions were a &ldquo;blatant end run&rdquo; around the Missouri Constitution's right of trial by jury because they converted the common law medical malpractice cause of action into a statutory one merely to impose the same statutory caps the Court previously struck down for infringing on the right to trial by jury.&nbsp; Judge Draper argues that the principal opinion erodes the right of trial by jury to a mere privilege that may be withdrawn by legislative prerogative.&nbsp;</p> <p align="center"><u>The Applicable Noneconomic Damage Cap is Based on Trial Year<br /> </u><u>Rather than Year of Underlying Injury</u></p> <p>The <i>Velazquez</i> Court rejected the healthcare provider defendants&rsquo; argument that applying the noneconomic damage cap at the time of trial (2019 &ndash; $748,828) &ndash; rather than the cap in effect at the time of the alleged injury (2015 &ndash; $700,000) &ndash; violated protections afforded by the Missouri Constitution against retrospective application of law.&nbsp;</p> <p>Noting that &sect; 538.210.8, RSMo. &ldquo;unambiguously express[ed] the legislative intent that a plaintiff&rsquo;s non-economic damages award be protected from inflation,&rdquo; the annual adjustment for inflation merely affected a procedure or remedy and did not run afoul of the constitutional proscription against retrospective laws.&nbsp; As a result, the Court held that the determination of the applicable noneconomic damage cap year is based on the time of trial, not the time of injury, and upheld the trial court&rsquo;s reduction of the noneconomic damages to $748,828 using the 2019 cap year.</p> <p>The <i>Velazquez</i> decision is an important victory for Missouri healthcare providers because it affirms the constitutionality of the noneconomic damage caps in cases against healthcare provider defendants.&nbsp; This affords the parties in those cases greater predictability in in terms of case value.&nbsp; The decision also provides courts and litigants clarity as to which cap year applies to pending and future cases.&nbsp;&nbsp;</p> Liability Bill Update - Governor Signs Legislation Shielding Healthcare Providers and Others From Most COVID-Related Lawsuits Jul 2021Healthcare Law Blog<p>As discussed in our <u><a href=";an=116511&amp;format=xml&amp;stylesheet=blog&amp;p=5258">June 1, 2021, blog post</a></u>, the Missouri Legislature passed a COVID liability bill (SB 51) that contains protections for healthcare providers, manufacturers, and other businesses from tort liability related to the COVID-19 pandemic. On July 7, Governor Parson signed the legislation, which has an effective date of August 28, 2021.</p> <p>Whether COVID-19 tort liability protections are reasonable and necessary is a hotly debated topic among various stakeholders, including the Missouri Chamber of Commerce, the American Medical Association, and trial lawyer organizations.&nbsp; Proponents of the new law believe it is critical to the State's economic recovery and to stopping those who would seek to profit from the pandemic. &nbsp;Opponents argue that the law will provide blanket immunity to negligent nursing homes and others who harm innocent Missourians.</p> <p>As discussed in our&nbsp;<a href=";an=114077&amp;format=xml&amp;stylesheet=blog&amp;p=5258">December 21, 2020 blog post</a>, Governor Parson has encouraged lawmakers to author this sort of tort liability legislation since at least November 2020, when he issued a written proclamation on the topic.&nbsp; SB 51 passed the Missouri Senate in February 2021.&nbsp; A key benefit of the bill to defendants generally is protection from suits stemming from COVID-19 exposures unless a plaintiff can show clear and convincing evidence of recklessness or willful misconduct and the exposure caused personal injury.&nbsp;</p> <p>There are protections in the bill specific to healthcare providers.&nbsp; In the healthcare context, the bill states that &ldquo;[a]n elective procedure that is delayed for good cause shall not be considered recklessness or willful misconduct.&rdquo;&nbsp; There is also a shortened limitations period for bringing a COVID-19 medical liability action.&nbsp; Such an action &ldquo;may not be commenced in any Missouri court later than one year after the date of the discovery of the alleged harm, damage, breach, or tort unless tolled for proof of fraud, intentional concealment, or the presence of a foreign body which has no therapeutic or diagnostic purpose or effect.&rdquo;&nbsp;</p> <p>The bill also limits punitive damages in a COVID-19 related action to a maximum of nine times the compensatory damages.&nbsp; However, &sect; 510.265, RSMo. (2005), may provide greater protection to healthcare provider defendants, in that it limits punitive damages to $500,000, or five times the net amount of the judgment awarded to the plaintiff, whichever is greater.</p> <p>SB 51 comes in the wake of the filing of thousands of COVID-related lawsuits nationally.&nbsp; Missouri alone has seen more than 140 COVID-related suits since the start of 2020.&nbsp; One potential unintended consequence of this legislation could be a sharp rise in COVID-related suits filed hastily in Missouri courts during the several weeks leading up to the August 28 effective date to circumvent the new law.&nbsp; Should this occur, many of these suits could be meritless and lacking adequate pre-suit investigation.&nbsp;</p> <p>Missouri will not be alone in providing COVID-19 tort liability protections.&nbsp; Other states have done so through executive order and/or legislative action.&nbsp; In addition, federal liability protections are already available under the 2005 Public Readiness and Emergency Preparedness (PREP) Act, which provides immunity to certain defendants, including healthcare provider defendants in certain situations.</p> <p>We will continue to monitor the implementation of this new law and its impact on our courts.&nbsp;&nbsp;</p> Court of Appeals Holds Trial Court Properly Refused To Allow Plaintiff's Counsel to Cross-Examine a Defense Expert on Subject Matter Outside His Area of Medical Expertise Jul 2021Healthcare Law Blog<p>In <i>Dalbey v. Heartland Regional Medical Center</i>, the Missouri Court of Appeals, Western District, affirmed a defense verdict in favor of an emergency room doctor and hospital in a medical negligence suit alleging that the doctor failed to diagnose a brain aneurysm that ruptured, hemorrhaged, and caused permanent brain injury. At the conclusion of a nine-day jury trial, the plaintiff&rsquo;s attorney asked the jury to consider more than $9 million in damages.&nbsp;</p> <p>On appeal, one of the plaintiff&rsquo;s claims of error was that the trial judge improperly prohibited his attorney from cross-examining a defense neuro-critical care expert about his opinion whether the emergency room doctor breached the standard of care.&nbsp; But the Court of Appeals applied Missouri Supreme Court precedent and ruled that although a physician practicing one specialty might be qualified to offer a standard care opinion concerning the conduct of a physician practicing in another specialty, a trial court need not admit testimony from a physician expert who denies knowledge of the standard of care for another specialty practice area.</p> <p>A brief synopsis of the underlying medical events provides context for the trial and appellate issues that followed.&nbsp; During the ER encounter at issue, the ER doctor diagnosed the plaintiff with gastritis or a peptic ulcer, prescribed Prilosec, and discharged him with the recommendation to pursue a follow-up endoscopy.&nbsp; The plaintiff reported a history of nausea, decreased appetite, and passing out after vomiting blood.&nbsp; On physical exam, the ER doctor found plaintiff neurologically normal, and he concluded plaintiff fainted because of a vasovagal episode triggered when he saw his own blood after vomiting.</p> <p>Less than one month later, the plaintiff returned to the same hospital by ambulance with severe headache and altered mental status.&nbsp; While in the ER, he suffered a seizure.&nbsp; The same ER doctor was on duty and ordered a head CT scan that revealed a ruptured intracranial aneurysm with intracerebral hemorrhage.&nbsp; The plaintiff was life flighted to a tertiary care center for neurosurgical intervention.</p> <p>The central claim at trial was that the ER doctor was negligent in failing to order a head CT scan on the first encounter, as earlier diagnostic testing would have revealed the brain aneurysm and/or a small bleed, and timely treatment would have prevented the rupture and large hemorrhage that followed.&nbsp; The claim against the hospital was based solely on vicarious liability for the ER doctor&rsquo;s alleged negligence.</p> <p>The defense case included testimony from a neuro-critical care expert, not on the standard of care for the ER doctor, but in support of the defense position that the aneurysm had not likely ruptured until the time of the second encounter and was not preceded by a bleed that could have been identified on CT imaging during the first encounter.&nbsp; The neuro-critical care expert testified the plaintiff&rsquo;s presentation during the first encounter, including a history of syncope and vomiting blood, a normal neurological examination, and no report of pain, was not consistent with an active brain hemorrhage.</p> <p>Plaintiff&rsquo;s counsel attempted to cross-examine the neuro-critical care expert to elicit standard of care opinions against the defendant ER doctor.&nbsp; Defense counsel objected, contending that the expert practiced in a different specialty area than the defendant ER doctor, the defense had not disclosed the physician as an expert on the standard of care for an ER doctor, and that plaintiff's counsel's questioning was outside the scope of the defense&rsquo;s direct examination.&nbsp; The court permitted plaintiff's counsel to conduct a voir dire examination outside the presence of the jury, during which the expert testified he had no intention of offering standard care testimony, as he was unfamiliar with the standard care for an ER doctor.&nbsp; Ultimately, before the jury, the neuro-critical care expert admitted that, if consulted during the first encounter, he would have ordered a head CT, assuming the plaintiff&rsquo;s version of events were true (which differed significantly from the defense&rsquo;s description as documented in the medical records).</p> <p>Citing Missouri Supreme Court case law, the Court of Appeals held the trial court did not err in prohibiting plaintiff&rsquo;s counsel from cross-examining the defense expert about the standard of care for an ER doctor.&nbsp; The rule is that while a physician practicing in one specialty might be qualified to offer a standard of care opinion concerning the conduct of a physician practicing in a different specialty area, this does not mean the trial court is required to admit testimony from a physician, like the neuro-critical care expert here, who denies knowledge of the applicable standard of care.&nbsp; The court found the plaintiff suffered no prejudice because the jury did not hear the expert&rsquo;s &ldquo;expression[] of agnosticism.&rdquo;&nbsp; The court permitted plaintiff's counsel to elicit testimony from the expert that, if plaintiff&rsquo;s version of events were true, he would have been concerned about an intracranial problem and potential hemorrhage and would have undertaken further neurological investigation.&nbsp; But the jury apparently did not agree with the plaintiff&rsquo;s version of the underlying facts.</p> &nbsp;This case demonstrates some of the practical considerations involved in presenting expert medical testimony at trial from multiple experts in different specialty practice areas.&nbsp; For example, it is not difficult to find an expert witness who is willing to testify outside his/her own specialty area and criticize another physician with another specialty board certification, which can raise credibility questions.&nbsp; However, even when a defense expert is unwilling to testify outside his practice &ldquo;lane,&rdquo; there is still a danger that an effective plaintiff attorney could cause the witness to concede points that are not helpful to the defense position at trial.&nbsp; This is particularly true when, as here, the expert has additional specialty training and more narrowly focused experience (for example, with neurological issues) beyond that of the defendant physician whose practice is more generalist (such as emergency medicine).&nbsp; &nbsp; &nbsp;&nbsp; Liability Bill Heads to Governor's Desk Jun 2021Healthcare Law Blog<p>On May 14, less than one-half an hour before the 6:00 p.m. constitutional deadline, the Missouri House passed a COVID liability bill that now heads to Governor Mike Parson for signature. Should he sign the bill (SB 51), it will have an effective date of August 28, 2021.&nbsp;The bill contains protections for healthcare providers, manufacturers, and businesses from tort liability related to the COVID-19 pandemic.</p> <p>As discussed in our <a href=";an=114077&amp;format=xml&amp;stylesheet=blog&amp;p=5258">December 21, 2020 blog post</a>, Governor Parson has encouraged lawmakers to author this sort of tort liability legislation since at least November 2020, when he issued a written proclamation on the topic.&nbsp;SB 51 passed the Missouri Senate in February 2021.&nbsp;A key benefit of the bill to defendants is protection from suits stemming from COVID-19 exposures unless a plaintiff can show clear and convincing evidence of recklessness or willful misconduct.&nbsp;If/when the Governor signs this legislation, we will provide additional analysis.&nbsp;</p> <p>SB 51 comes in the wake of the filing of thousands of COVID-related lawsuits nationally.&nbsp;One potential unintended consequence of this legislation could be a sharp rise in COVID-related suits filed hastily in Missouri courts during the several weeks leading up to the August 28 effective date to circumvent the new law.&nbsp;Should this occur, many of these suits could be meritless and lacking adequate pre-suit investigation.&nbsp;</p> <p>Assuming SB 51 becomes law, Missouri would not be alone in considering COVID-19 tort liability protections.&nbsp;Other states have provided this through executive order and/or legislative action.&nbsp;In addition, federal liability protections are already available under the 2005 Public Readiness and Emergency Preparedness (PREP) Act, which provides immunity to certain defendants, including healthcare provider defendants in certain situations.</p> <p>The appropriateness of COVID-19 tort liability protections has been hotly debated among the various stakeholders, including the Missouri Chamber of Commerce, the American Medical Association, and various trial lawyer organizations.&nbsp;We will continue to monitor this legislation and its impact in Missouri, both inside and outside its courtrooms.&nbsp; &nbsp;</p> Court of Missouri Affirms Jury Award of Punitive Damages Against Healthcare Provider May 2021Healthcare Law Blog<p>In March 2021, the Supreme Court of Missouri, in <i>Rhoden v. Mo. Delta Med. Ctr.</i>, affirmed a jury award of $300,000 in punitive damages against a healthcare provider defendant. The majority held that the facts &ndash; which arose before Missouri&rsquo;s punitive damages statute was amended - met the plaintiff&rsquo;s burden of proving the defendant &ldquo;showed a complete indifference to or conscious disregard for the safety of others.&rdquo; Fortunately, this case should have limited impact, because 2020 changes to Missouri law on punitive damages in &sect; 538.210.8, RSMo., made clear the legislature&rsquo;s intent that a higher standard applies to healthcare provider defendants.&nbsp; Rather than dwell on the underlying facts of <i>Rhoden</i>, we will instead focus on the debate among the majority, concurring, and dissenting opinions regarding the appropriate standard for the imposition of punitive damages against healthcare providers.&nbsp;</p> <p>In <i>Rhoden, </i>the Court applied a pre-amendment version of &sect; 538.210 that permitted punitive damages against a healthcare provider only &ldquo;upon a showing by a plaintiff that the healthcare provider demonstrated willful, wanton or malicious misconduct.&rdquo;&nbsp; As discussed in our <a href=";an=110795&amp;format=xml&amp;stylesheet=blog&amp;p=5258">July 30, 2020 blog article</a>, that statutory standard was undefined and has proved problematic in its application.&nbsp; The <i>Rhoden</i> Court followed opinions from lower appellate courts finding that, for purposes of punitive damages, acting &ldquo;willfully, wantonly or maliciously&rdquo; is the legal equivalent to acting with &ldquo;a complete indifference to or conscious disregard for the rights or safety of others.&rdquo;&nbsp; Thus, the Court held it was not a misstatement of the law or otherwise error for the trial court to have given a jury instruction with the &ldquo;complete indifference to or conscious disregard for the safety of others&rdquo; standard as opposed to &sect; 538.210.8&rsquo;s standard of &ldquo;willful, wanton or malicious misconduct,&rdquo; as the two standards were equivalent and not in conflict.</p> <p>Two separate dissenting opinions criticize the majority&rsquo;s position.&nbsp; The first focuses on the fact that punitive damages are imposed not to compensate plaintiffs, but for the purpose of punishment and deterrence, and they should rarely be recoverable in medical negligence actions and reserved solely for truly extraordinary cases.&nbsp; One judge observed that the healthcare provider's conduct might have been a negligent error, as the jury determined, but there was no credible claim that the physician&rsquo;s conduct was tantamount to intentional wrongdoing or that the patient&rsquo;s death was the natural and probable result of the physician&rsquo;s treatment decisions.&nbsp;</p> <p>A second dissenting opinion focuses on the legislative intent to establish a higher standard for healthcare provider defendants.&nbsp; With the 1986 amendments to &sect; 538.210, the General Assembly intended for a higher standard for punitive damages claims against healthcare providers than the lesser standard applicable to defendants generally. &nbsp;In this judge&rsquo;s opinion, it was unfortunate that the Missouri intermediate appellate courts (and the Supreme Court majority) failed to recognize the General Assembly&rsquo;s intentional modification of the common law by holding the two standards equivalent.&nbsp; As mentioned above, this confusion led the General Assembly to further clarify its intent by amending &sect; 538.210 in 2020, and state specifically that &ldquo;evidence of negligence including, but not limited to, indifference to or conscious disregard for the safety of others shall not constitute intentional conduct or malicious misconduct&rdquo; sufficient for punitive damages.</p> The 2020 amendments to &sect; 538.210 should limit the precedential value of <i>Rhoden</i>.&nbsp; However, the robust discussion in this opinion underscores the former confusion about the proper standard for punitive damages in medical negligence cases and the need for greater clarity.&nbsp; The 2020 amendments should bring that clarity, with a return to the original common law concept of intentional misconduct being a prerequisite for an award of punitive damages.&nbsp; The new law should bring into focus the heretofore blurred line between merely negligent conduct and conduct that justifies an award of punitive damages.&nbsp; This new law appears to offer significant protections for healthcare provider defendants, while also allowing for the possibility of a punitive damages claim, but only in the rare circumstance where the evidence would support it.&nbsp;'s Pandemic Protections for Providers - Governor Parson Encourages Tort Liability Legislation During COVID-19 State of Emergency Dec 2020Healthcare Law Blog<p style="text-align: left;"><u>Introduction</u></p> <p>On November 12, Governor Parson issued a written proclamation encouraging lawmakers to author new tort liability legislation insulating defendants from lawsuits arising out of the COVID-19 state of emergency that has existed since March.&nbsp;This effort is designed to allow these individuals and entities to continue to serve the public without threat of unnecessary and frivolous litigation.&nbsp;We have since learned that the Missouri legislature is not likely to address this issue until early 2021.&nbsp;Governor Parson seems to have reconsidered the timing for the agenda and directed the legislature to address this, not during the ongoing special session, but during the regular January session.&nbsp;The bill will be titled SB1.&nbsp;&nbsp;&nbsp;</p> <p>In the statement, the Governor explained one of the main purposes of this action is to assist healthcare providers who have gone well beyond normal duty to provide exceptional care to Missourians despite great personal risk to their own health and well-being by amending and expanding upon &sect; 44.045, RSMo, to afford liability protections for healthcare workers who provide necessary care during a declared state of emergency. &nbsp;Though not dealt with here, the Governor&rsquo;s proclamation also identifies other organizations instrumental to COVID-19 response efforts, including product manufacturers and premises owners like schools and churches that provide fundamental societal functions.&nbsp;This potentially includes a new Section in Chapter 537, RSMo, to provide products liability protection for product manufacturers, designers, distributors, and sellers involved in bringing products to market in direct response to a state of emergency.&nbsp;It also potentially includes a new section to provide premises liability protection for exposure claims arising from a declared state of emergency.&nbsp;</p> <p style="text-align: left;"><u>Why Is This Necessary?</u></p> <p>The threat of COVID litigation is real.&nbsp;There have been an estimated 10,000 COVID-related lawsuits filed nationally.&nbsp;This includes hundreds of healthcare specific suits and is almost certain to continue well into the next year and beyond.&nbsp;&nbsp; &nbsp;</p> <p>The risk to healthcare workers is real too.&nbsp;As of December 21, there were almost 17.8 million COVID cases and more than 315,000 deaths in the U.S.&nbsp;Healthcare workers make up a significant portion of nationwide COVID-19 infections.&nbsp;As of July, there were 100,000 cases of COVID-19 infecting healthcare workers.&nbsp;By September 2020, more than 1,700 U.S. healthcare workers had died from COVID-19.&nbsp;Per the CDC, healthcare workers make up approximately 6% of adults hospitalized with COVID-19.&nbsp;Among those, 36% were in the nursing field, and 28% were admitted to an ICU.&nbsp;Sixteen percent required invasive mechanical ventilation, and 4% died.&nbsp;</p> <p>None of this is surprising considering healthcare workers are on the frontline of battling this global pandemic and, in doing so, expose themselves to great personal risk each shift providing exceptional care for their communities.&nbsp;They must deal with the challenge not only of exposing themselves to the virus, but also observing terrible suffering and outcomes of their patients, and doing this with limited resources, equipment and healthcare staff.&nbsp;The author of this blog believes prudent legislative action is necessary under the circumstances and likely to be helpful in mitigating some litigation risk for healthcare professionals.&nbsp;</p> <p style="text-align: left;"><u>A National Approach to Liability Protections</u></p> <p>Missouri is not the only state to consider such liability protections.&nbsp;Other states have provided this through executive order and/or legislative action.&nbsp;For example, the neighboring states of Arkansas, Iowa, Illinois, Kansas, Kentucky, and Oklahoma have already passed COVID liability protections.&nbsp;Many of these states&rsquo; protections afford immunity from civil damages for licensed healthcare providers but carve out exceptions for injuries or death caused by gross negligence, willful and criminal misconduct and intentional infliction of harm, and fraud.&nbsp;</p> <p>Although there was much discussion during negotiations for a federal COVID-19 relief package as to whether it would include liability protections for healthcare providers and other businesses, in the end, no such provision was included in the $900 billion program.&nbsp;Though not dealt with in detail here, federal liability protections are already available under the 2005 Public Readiness Emergency Preparedness (PREP) Act, which authorizes the Secretary of the US Department of Health and Human Services to issue a declaration in response to a public health emergency.&nbsp;On March 10, 2020, Secretary of HHS Alex Azar issued such a declaration, effective February 4, 2020, which provides immunity to &ldquo;covered persons,&rdquo; such as healthcare providers, using certain &ldquo;covered countermeasures,&rdquo; including masks, respirators, and vaccines, that are necessary to combat the public health emergency.&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;</p> <p>The Missouri Chamber of Commerce and industry stakeholders overwhelmingly support these protections.&nbsp;The American Medical Association has pushed for states to pursue liability protections for healthcare professionals during the COVID-19 emergency.&nbsp;However, this is not without criticism, with some suggesting such policies would protect irresponsible businesses from accountability and fail to protect the public.&nbsp;&nbsp;&nbsp;</p> <p>It is important to note that the anticipated liability protections parallel &ldquo;good Samaritan&rdquo; laws that have existed throughout the country for decades and afford qualified immunity from civil liability for healthcare professionals who volunteer their services as a generous compassionate act unless they engage in willful or intentional misconduct.&nbsp;</p> <p>We will continue to follow this issue and look for activity during the January 2021 general legislative session.&nbsp;</p> Is Not a Game | Illinois Appellate Court Overturns $50 Million Dollar Birth Injury Verdict Oct 2020Healthcare Law Blog<p><i>Florez v. Northshore Univ. Healthsystem</i>, 2020 IL App (1st) 190465; 2020 Ill. App. LEXIS 560</p> <p>The First District Appellate Court of Illinois recently held that the trial court abused its discretion by barring any reference to a child&rsquo;s autism diagnosis at trial. As a result of this trial court error, the appellate court overturned a $50 million jury verdict involving the child&rsquo;s alleged brain injury sustained at birth.</p> <p>Plaintiff alleged the defendant failed to diagnose and treat the child&rsquo;s oxygen deprivation during birth, allegedly leading to a severe brain injury. The plaintiff&rsquo;s counsel argued throughout the case and at trial that the child&rsquo;s brain injury occurred at or near the time of his birth. The defendant countered that other factors caused the child&rsquo;s condition with no causal connection to the birth treatment.</p> <p>Fifty-six days before trial, the plaintiff supplemented his answers to written discovery with a copy of a behavioral report and psychological evaluation from his expert neuropsychologist, who found that the plaintiff met the full diagnostic criteria for Autism Spectrum Disorder. Upon receiving the neuropsychologist&rsquo;s report, the defendant&rsquo;s experts found that the plaintiff&rsquo;s autism diagnosis <i>supported </i>their conclusion that the plaintiff's disabilities were from a chronic condition rather than an acute birth injury.</p> <p>Pursuant to Illinois Rule 218(c), the defendant filed supplemental disclosures on this evidence and moved to disclose the neuropsychologist as a witness at trial. In response, the plaintiff moved to strike the supplemental disclosures and witness arguing that the defendant was improperly attempting to inject a new issue into the case. The court granted the plaintiff&rsquo;s motion to strike and found the defendant&rsquo;s supplemental disclosures untimely because the disclosures were not filed at least 60 days before trial.</p> <p>However, the appellate court reasoned that the mechanical application of the 60-day deadline under these circumstances would encourage &ldquo;tactical gamesmanship&rdquo; because the plaintiff filed his expert&rsquo;s evaluation less than 60 days before the trial. Essentially, the defendant could not have met the deadline even if it responded the very day it received the report.</p> <p>Though the plaintiff&rsquo;s experts opined that the defendant&rsquo;s negligence led to oxygen deprivation and plaintiff&rsquo;s injuries and cognitive deficits, the defendant&rsquo;s experts opined that plaintiff&rsquo;s injuries were chronic. For example, the defendant&rsquo;s experts opined that a seizure that occurred five hours after birth was a chronic issue rather than something caused by birth-related treatment.</p> <p>Accordingly, the appellate court held that barring evidence of an autism diagnosis was an abuse of discretion because the evidence was probative of the causation issue, defendant&rsquo;s experts could not use it to support their conclusions, and it was not available for the jury to consider in resolving conflicting expert opinions.</p> <p>Aside from the causation issue, the appellate court found that the autism diagnosis was also relevant to damages issues including plaintiff&rsquo;s future medical needs, school requirements, and employment prospects.</p> Ultimately, this case demonstrates how discovery rules should be applied on a case by case basis, as a mechanical application of the rules may not always yield the most just result.&nbsp; Senate Bill 591 - Punitive Damages (A Health Care Perspective) Jul 2020Healthcare Law Blog<p><u>Introduction</u></p> <p>On July 1, 2020, Governor Mike Parson signed Senate Bill 591 (SB 591). The new law states it will apply to all suits filed on or after August 28, 2020.&nbsp;SB 591 makes significant changes to the framework for punitive damages in tort actions filed in Missouri state courts or filed in other courts but based on Missouri state law tort claims.&nbsp;The discussion that follows is limited solely to medical negligence cases.&nbsp;Though not dealt with here, SB 591 also includes significant changes to actions under Missouri's consumer protection statute, the Merchandising Practices Act (&ldquo;MMPA,&rdquo; &sect; 407.025, <i>et seq</i>., RSMo. (2020)).</p> <p><u>Clarifying the Proper Standard</u></p> <p>SB 591 is intended to bring much-needed clarity to punitive damages in medical negligence cases.&nbsp;This is not the first time the Legislature has addressed the issue, however.&nbsp;Since 1986, Chapter 538 of the Missouri Revised Statutes has included a definition for punitive damages as those &ldquo;intended to punish or deter willful, wanton or malicious misconduct.&rdquo;&nbsp;&sect; 538.205(11) (1986).&nbsp;Consistent with this definition, the Legislature intended that punitive damages may be awarded against a health care provider only &ldquo;upon a showing by a plaintiff that the health care provider demonstrated willful, wanton or malicious misconduct . . . . &nbsp;&sect; 538.210.8 (1986).</p> <p>Unfortunately, this statutory definition has proved problematic in its application.&nbsp;For example, in one medical negligence case involving a substantial punitive damages award, the trial court approved (over the defendants&rsquo; objection) a jury instruction submitted by the plaintiffs that used the standard &ldquo;complete indifference or conscious disregard&rdquo; instead of the &ldquo;willful, wanton or malicious&rdquo; standard mandated by &sect; 538.210.8.&nbsp;<i>See,</i> <i>Koon v. Walden</i>, 539 S.W.3d 752, 773 (Mo. App. E.D. 2017).&nbsp;That meant the jury was not instructed using the statutory language, and the jury did not specifically find that the defendants engaged in &ldquo;willful, wanton or malicious misconduct.&rdquo;&nbsp;The Missouri Court of Appeals, Eastern District, affirmed, concluding that for purposes of punitive damages, acting with &ldquo;complete indifference or conscious disregard for the safety of others&rdquo; is the legal equivalent of engaging in &ldquo;willful, wanton or malicious misconduct.&rdquo;&nbsp;<i>Id</i>. at 774-75.&nbsp;In a concurring opinion, one appellate judge stated: &ldquo;I agree that the common understanding of the words &lsquo;willful, wanton or malicious&rsquo; mean something different than &lsquo;complete indifference to or conscious disregard for the safety of others&rsquo;,&rdquo; and that the instructional issue merited further review by the Supreme Court.&nbsp;<i>Id</i>. at 775-76.&nbsp;Despite this invitation, the Supreme Court of Missouri denied the appellants&rsquo; application for transfer.</p> <p>SB 591 takes this issue head on and requires that a jury find &ldquo;the evidence clearly and convincingly demonstrated that the health care provider intentionally caused damage to the plaintiff or demonstrated malicious misconduct that caused damage to the plaintiff.&rdquo; &sect; 538.210.8, RSMo. (2020). Further, and apparently in response to the <i>Koon</i> decision, SB 591 explicitly states that: &ldquo;Evidence of negligence including, but not limited to, indifference to or conscious disregard for the safety of others shall not constitute intentional conduct or malicious misconduct.&rdquo;&nbsp;<i>Id</i>.&nbsp;This change reflects a return to the original common-law standard of intentional misconduct and is an effort to clarify for the courts the proper standard and prohibit the use of lesser standards.</p> <p>As mentioned above, as part of this new, heightened standard, SB 591 includes the &ldquo;clear and convincing&rdquo; burden of proof for punitive damages.&nbsp;This concept is not new, however, as the Supreme Court of Missouri adopted this evidentiary standard for all tort cases in <i>Rodriguez v. Suzuki Motor Corp</i>., 936 S.W.2d 104, 106 (Mo. 1996).&nbsp;Now, SB 591 codifies this standard into the statutory framework.&nbsp;Unchanged is &sect; 510.265, RSMo. (2005), which limits punitive damages in most civil cases to $500,000, or five times the net amount of the judgment awarded to the plaintiff, whichever is greater.&nbsp;The <i>Lewellen v. Franklin</i>, 441 S.W.3d 136 (Mo. 2014) decision, in which the Supreme Court of Missouri reasoned that applying the punitive damages cap to a common law cause of action violated the constitutional right to a trial by jury, does not prohibit the Legislature from capping damages for a statutory cause of action such as medical negligence.&nbsp;<i>See</i> &sect; 538.210, RSMo. (2015) (creating statutory cause of action for all medical negligence actions and replacing common law claims).</p> <p><u>Significant Procedural Hurdles</u></p> <p>Though not solely applicable to medical negligence actions, SB 591 also includes a series of procedural hurdles that a plaintiff must overcome before a court may allow a plaintiff to plead a claim for punitive damages and submit such a claim to a jury.&nbsp;These changes are included in Chapter 510.&nbsp;Under the new law, a plaintiff may not plead a claim for punitive damages until after a court has determined, based on available evidence, that a jury could reasonably conclude that the burden of proof and standard of liability have been met.&nbsp;<a name="_Hlk46305449">&sect; 510.261.5, RSMo. (2020). </a>This will be important, as it has become increasingly common for Missouri plaintiff attorneys to include in a medical negligence petition a prayer for punitive damages along with compensatory damages as a matter of course, regardless of the nature of the facts of the specific case.&nbsp;This should no longer be tolerated unless the court grants a motion for leave filed no later than 120 days before the final pretrial conference or trial.&nbsp;No pleading or discovery shall be permitted on punitive damages unless a plaintiff first clears this procedural hurdle.</p> <p><u>Vicarious Liability Issues</u></p> <p>SB 591 also includes a &ldquo;Complicity Rule&rdquo; that limits vicarious liability for punitive damages against an employer/principal for employee/agent conduct.&nbsp;The new law permits such an award against an employer for the conduct of an employee only if the employee was a managerial employee acting in the course and scope of his employment; the employer authorized or later ratified the employee&rsquo;s conduct; or the employee was &ldquo;unfit&rdquo; for the job making it &ldquo;reckless&rdquo; for the employer to hire or retain the employee.&nbsp;&sect; 510.261.3, RSMo. (2020). It remains to be seen how courts will apply this rule to health care providers, but &sect; 538.210.4, RSMo. (2020) is unchanged and continues to prohibit health care provider vicarious liability for the conduct of a non-employee agent.</p> <p><u>Conclusion</u></p> <p>SB 591 represents a return to the original common law concept of intentional misconduct being a prerequisite for an award of punitive damages.&nbsp;It is a robust effort designed to bring into focus the blurred line between mere negligent conduct and conduct that justifies an award of punitive damages, along with a procedural framework to weed out frivolous claims and ensure plaintiffs are held to the appropriate standard and burden of proof.&nbsp;The provisions outlined above appear to offer significant protections for health care provider defendants, while also allowing for the possibility of a punitive damages claim, but only in the rare circumstance where the evidence would support it.&nbsp;&nbsp;&nbsp;</p> <p><i>*Baker Sterchi Member Lisa A. Larkin assisted in the research for this post.&nbsp;</i></p> and Cybersecurity Amid the Pandemic Jun 2020Healthcare Law Blog<div>&ldquo;The New Normal.&rdquo; &ldquo;Social distancing.&rdquo; &ldquo;Stay home.&rdquo; &ldquo;Unprecedented.&rdquo;</div> <div>&nbsp;</div> <div>You&rsquo;ve probably heard the above phrases more than once, twice, or fifty times over the past couple of months during the COVID-19 pandemic.&nbsp; Almost all aspects of life are changing and/or have changed, including the way in which we are seeking medical care.<br /> <br /> Indeed, telehealth is rapidly becoming a&nbsp;new normal&rdquo; for routine healthcare visits, a market predicted to reach <a href="">more than $130 billion worldwide by 2025</a> and <a href="">$10 billion by the end of 2020</a>. What is telehealth?&nbsp;According to the U.S.&nbsp;Department of Health and Human Services, Office for Civil Rights, it is &ldquo;<a href="">the use of electronic information and telecommunications technologies to support and promote long-distance clinical healthcare, patient and professional health-related education, and public health and health administration</a>.&rdquo;&nbsp; <br /> <br /> Examples of telehealth and its technologies include: mobile and/or wireless health platforms, real-time interactive services, such as teleconsultation and telenursing, and remote patient monitoring (such as for diabetes, weight gain/loss, and dementia), which are available via the internet, video, steaming media, webcam, live chat and/or video conference.<br /> <br /> While innovative, convenient, and helpful to our society, especially in these challenging times, such telehealth programs have also raised concerns about cybersecurity risks to healthcare organizations and the public as healthcare organizations continue to speed toward implementing these programs. Examples of such cybersecurity risks include <a href="">hacking and data breaches, phishing attacks, ransomware threats, loss or theft of equipment, data loss, and medical device attacks.</a> These threats are especially concerning considering HIPAA privacy requirements. However, during the COVID-19 pandemic, organizations implementing telehealth programs will not likely be penalized by the HHS, <a href="">Office of Civil Rights</a> for HIPAA violations should the programs fail to comply with the required regulations, as long as they are using <a href="">non-public facing remote communications in good faith</a>. This leniency is not likely to last forever though.<br /> <br /> What makes these threats possible?&nbsp;The fact that these telehealth systems heavily rely on the Internet. Further vulnerabilities of such systems include weak passwords, insecure network services, lack of secure updates, lack of privacy protection, outdated antivirus software, lack of secure data transfer and storage, and lack of device management.<br /> <br /> However, to provide some protection, the following non-public facing remote communications are <a href="">currently permitted: Apple FaceTime, Facebook Messenger video chat, Google Hangouts video, Whatsapp video chat, Zoom and Skype</a>.&nbsp;These types of communications use end-to-end encryption, allowing only the person or persons communicating on each end to see what is transmitted, require personal accounts, logins, and passwords, and provide the users some control over how the communication occurs (i.e. video, sound, etc.). Not included in this list are Facebook Live, Twitch, TikTok, and similar video communication applications, as they are public facing.&nbsp;Such public facing forms of remote communication are not secure for such telehealth programs due to being open to the public and permitting more open and uninhibited access to the communications taking place.<br /> <br /> Telehealth is likely here to stay, which is why it is so important that organizations and individuals ensure that steps are continuously taken to protect the platforms from breaches and protect users&rsquo; private information. There are many other organizations providing continuing recommendations of how to mitigate and otherwise address cybersecurity risks and actual breaches. <i>See</i> <a href="">American Hospital Association</a> and <a href="">National Institute of Standards and Technology</a>. &nbsp;To learn even more about cybersecurity risks and practical approaches to effectively defending against and/or addressing breaches, BSCR previously did a three part series on cybersecurity risks, which can be accessed <a href=";an=61608&amp;format=xml&amp;stylesheet=blog&amp;p=5258">here</a>, <a href=";an=62085&amp;format=xml&amp;stylesheet=blog&amp;p=5258">here</a>, and <a href=";an=62097&amp;format=xml&amp;stylesheet=blog&amp;p=5258">here</a>.</div> <div>&nbsp;</div> Healthcare Heroics May Ironically Lead to Future Confrontations - Causation Issues (Part 4) May 2020Healthcare Law Blog<p>In part four of our series of blog articles delving into potential dangers for healthcare providers related to the COVID-19 global pandemic, we consider causation issues for healthcare associated COVID-19 infections.</p> <p><b><u>General Infection Causation Issues</u></b></p> <p>While every corner of American commerce, including food suppliers and sellers, financial institutions, childcare providers and fitness centers, may face increasing liability claims from customers and third parties claiming to have been exposed to COVID-19 during a visit to their premises, in most cases, proving that an infected person caught COVID-19 from a specific source should be a difficult task, especially considering the known virus viability outside the body and incubation time (the time between contracting the virus and onset of symptoms).</p> <p>According to a study published in the New England Journal of Medicine, SARS-CoV-2, the virus that causes COVID-19, can live in the air and on surfaces between several hours and several days. The study found that the virus is viable for up to 72 hours on plastics, 48 hours on stainless steel, 24 hours on cardboard, and 4 hours on copper. It is also detectable in the air for three hours. After interaction with an infection source, most estimates of the incubation period for COVID-19 range from 1-14 days, with most infected individuals exhibiting symptoms around five days.&nbsp;Given the difficulty tracking all interactions of an infected person during the combined length of time between virus viability outside the body and incubation, narrowing the source of infection to one source and effectively ruling out all other possible acquisition more likely than not to a reasonable degree of certainty will likely be a difficult task.&nbsp;</p> <p><b><u>Causation Issues for Healthcare Associated COVID-19 Infections</u></b></p> <p>Nosocomial or healthcare associated infections are infections acquired during care which are not present or incubating at admission or treatment start.&nbsp;Nosocomial infections have been a reality since the origin of medicine and have been the object of litigation for some time.&nbsp;Undoubtedly, the COVID-19 pandemic will result in numerous lawsuits alleging that a healthcare provider&rsquo;s negligence led to infection during treatment.&nbsp;However, given that most infections are asymptomatic for some time after their onset, it can be very difficult to identify with precision whether the infection was indeed contracted after admission or whether the patient was infected before admission but asymptomatic.&nbsp;Several agencies and authorities have attempted to identify time parameters for establishing what generally constitutes a nosocomial infection.&nbsp;For example, the World Health Organization (&ldquo;WHO&rdquo;) &ldquo;usually&rdquo; considers infections occurring more than 48 hours after admission to be nosocomial. However, the &ldquo;usual&rdquo; qualifier in the WHO&rsquo;s definition allows a case-specific analysis of whether an infection can be deemed nosocomial. Thus, the WHO&rsquo;s 48-hour cutoff, or any other third-party&rsquo;s definition is not likely to apply to alleged COVID-19 infections given the longer incubation time discussed above.&nbsp;&nbsp;</p> <p>For long-term care facilities, although a complete causation defense may be complicated by a resident&rsquo;s likely admission predating the COVID-19 outbreak, providers should still attempt to establish a causation defense that a resident cannot prove virus transmission to a reasonable degree of certainty <u>after</u> the facility knew or should have known of the risk of COVID-19 transmission and <u>before</u> the recommended precautions were instituted.&nbsp;In support of this strategy, the Centers for Disease Control (&ldquo;CDC&rdquo;) has recognized that long-term care residents with COVID-19 may not report common symptoms like fever or respiratory symptoms, and some may not report any symptoms at all. The CDC acknowledges that unrecognized asymptomatic and pre-symptomatic infections likely contribute to transmission in long-term care facilities.&nbsp;These two CDC-recognized factors should strengthen a causation defense utilizing the above strategy.</p> <p><strong>Our prior posts in this series can be found<a href=";an=108514&amp;format=xml&amp;stylesheet=blog&amp;p=5258"> here (part 1)</a>, <a href=";an=108572&amp;format=xml&amp;stylesheet=blog&amp;p=5258">here (part 2)</a>, and <a href=";an=108575&amp;format=xml&amp;stylesheet=blog&amp;p=5258">here (part 3)</a>.</strong></p>