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Healthcare Law Blog Legal updates, news, and commentary from the attorneys of Baker Sterchi Cowden & Rice LLC

Parson's Pandemic Protections for Providers - Governor Parson Encourages Tort Liability Legislation During COVID-19 State of Emergency

December 21, 2020 | John Mahon, Jr.

Introduction

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. This effort is designed to allow these individuals and entities to continue to serve the public without threat of unnecessary and frivolous litigation. We have since learned that the Missouri legislature is not likely to address this issue until early 2021. 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. The bill will be titled SB1.   

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 § 44.045, RSMo, to afford liability protections for healthcare workers who provide necessary care during a declared state of emergency.  Though not dealt with here, the Governor’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. 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. It also potentially includes a new section to provide premises liability protection for exposure claims arising from a declared state of emergency. 

Why Is This Necessary?

The threat of COVID litigation is real. There have been an estimated 10,000 COVID-related lawsuits filed nationally. This includes hundreds of healthcare specific suits and is almost certain to continue well into the next year and beyond.    

The risk to healthcare workers is real too. As of December 21, there were almost 17.8 million COVID cases and more than 315,000 deaths in the U.S. Healthcare workers make up a significant portion of nationwide COVID-19 infections. As of July, there were 100,000 cases of COVID-19 infecting healthcare workers. By September 2020, more than 1,700 U.S. healthcare workers had died from COVID-19. Per the CDC, healthcare workers make up approximately 6% of adults hospitalized with COVID-19. Among those, 36% were in the nursing field, and 28% were admitted to an ICU. Sixteen percent required invasive mechanical ventilation, and 4% died. 

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. 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. 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. 

A National Approach to Liability Protections

Missouri is not the only state to consider such liability protections. Other states have provided this through executive order and/or legislative action. For example, the neighboring states of Arkansas, Iowa, Illinois, Kansas, Kentucky, and Oklahoma have already passed COVID liability protections. Many of these states’ 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. 

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. 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. On March 10, 2020, Secretary of HHS Alex Azar issued such a declaration, effective February 4, 2020, which provides immunity to “covered persons,” such as healthcare providers, using certain “covered countermeasures,” including masks, respirators, and vaccines, that are necessary to combat the public health emergency.      

The Missouri Chamber of Commerce and industry stakeholders overwhelmingly support these protections. The American Medical Association has pushed for states to pursue liability protections for healthcare professionals during the COVID-19 emergency. However, this is not without criticism, with some suggesting such policies would protect irresponsible businesses from accountability and fail to protect the public.   

It is important to note that the anticipated liability protections parallel “good Samaritan” 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. 

We will continue to follow this issue and look for activity during the January 2021 general legislative session. 

Discovery Is Not a Game | Illinois Appellate Court Overturns $50 Million Dollar Birth Injury Verdict

October 13, 2020 | Nathan Leming and Kelly Sabatés

Florez v. Northshore Univ. Healthsystem, 2020 IL App (1st) 190465; 2020 Ill. App. LEXIS 560

The First District Appellate Court of Illinois recently held that the trial court abused its discretion by barring any reference to a child’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’s alleged brain injury sustained at birth.

Plaintiff alleged the defendant failed to diagnose and treat the child’s oxygen deprivation during birth, allegedly leading to a severe brain injury. The plaintiff’s counsel argued throughout the case and at trial that the child’s brain injury occurred at or near the time of his birth. The defendant countered that other factors caused the child’s condition with no causal connection to the birth treatment.

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’s report, the defendant’s experts found that the plaintiff’s autism diagnosis supported their conclusion that the plaintiff's disabilities were from a chronic condition rather than an acute birth injury.

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’s motion to strike and found the defendant’s supplemental disclosures untimely because the disclosures were not filed at least 60 days before trial.

However, the appellate court reasoned that the mechanical application of the 60-day deadline under these circumstances would encourage “tactical gamesmanship” because the plaintiff filed his expert’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.

Though the plaintiff’s experts opined that the defendant’s negligence led to oxygen deprivation and plaintiff’s injuries and cognitive deficits, the defendant’s experts opined that plaintiff’s injuries were chronic. For example, the defendant’s experts opined that a seizure that occurred five hours after birth was a chronic issue rather than something caused by birth-related treatment.

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’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.

Aside from the causation issue, the appellate court found that the autism diagnosis was also relevant to damages issues including plaintiff’s future medical needs, school requirements, and employment prospects.

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. 

Missouri Senate Bill 591 - Punitive Damages (A Health Care Perspective)

July 30, 2020 | John Mahon, Jr.

Introduction

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. 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. The discussion that follows is limited solely to medical negligence cases. Though not dealt with here, SB 591 also includes significant changes to actions under Missouri's consumer protection statute, the Merchandising Practices Act (“MMPA,” § 407.025, et seq., RSMo. (2020)).

Clarifying the Proper Standard

SB 591 is intended to bring much-needed clarity to punitive damages in medical negligence cases. This is not the first time the Legislature has addressed the issue, however. Since 1986, Chapter 538 of the Missouri Revised Statutes has included a definition for punitive damages as those “intended to punish or deter willful, wanton or malicious misconduct.” § 538.205(11) (1986). Consistent with this definition, the Legislature intended that punitive damages may be awarded against a health care provider only “upon a showing by a plaintiff that the health care provider demonstrated willful, wanton or malicious misconduct . . . .  § 538.210.8 (1986).

Unfortunately, this statutory definition has proved problematic in its application. For example, in one medical negligence case involving a substantial punitive damages award, the trial court approved (over the defendants’ objection) a jury instruction submitted by the plaintiffs that used the standard “complete indifference or conscious disregard” instead of the “willful, wanton or malicious” standard mandated by § 538.210.8. See, Koon v. Walden, 539 S.W.3d 752, 773 (Mo. App. E.D. 2017). That meant the jury was not instructed using the statutory language, and the jury did not specifically find that the defendants engaged in “willful, wanton or malicious misconduct.” The Missouri Court of Appeals, Eastern District, affirmed, concluding that for purposes of punitive damages, acting with “complete indifference or conscious disregard for the safety of others” is the legal equivalent of engaging in “willful, wanton or malicious misconduct.” Id. at 774-75. In a concurring opinion, one appellate judge stated: “I agree that the common understanding of the words ‘willful, wanton or malicious’ mean something different than ‘complete indifference to or conscious disregard for the safety of others’,” and that the instructional issue merited further review by the Supreme Court. Id. at 775-76. Despite this invitation, the Supreme Court of Missouri denied the appellants’ application for transfer.

SB 591 takes this issue head on and requires that a jury find “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.” § 538.210.8, RSMo. (2020). Further, and apparently in response to the Koon decision, SB 591 explicitly states that: “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.” Id. 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.

As mentioned above, as part of this new, heightened standard, SB 591 includes the “clear and convincing” burden of proof for punitive damages. This concept is not new, however, as the Supreme Court of Missouri adopted this evidentiary standard for all tort cases in Rodriguez v. Suzuki Motor Corp., 936 S.W.2d 104, 106 (Mo. 1996). Now, SB 591 codifies this standard into the statutory framework. Unchanged is § 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. The Lewellen v. Franklin, 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. See § 538.210, RSMo. (2015) (creating statutory cause of action for all medical negligence actions and replacing common law claims).

Significant Procedural Hurdles

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. These changes are included in Chapter 510. 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. § 510.261.5, RSMo. (2020). 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. 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. No pleading or discovery shall be permitted on punitive damages unless a plaintiff first clears this procedural hurdle.

Vicarious Liability Issues

SB 591 also includes a “Complicity Rule” that limits vicarious liability for punitive damages against an employer/principal for employee/agent conduct. 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’s conduct; or the employee was “unfit” for the job making it “reckless” for the employer to hire or retain the employee. § 510.261.3, RSMo. (2020). It remains to be seen how courts will apply this rule to health care providers, but § 538.210.4, RSMo. (2020) is unchanged and continues to prohibit health care provider vicarious liability for the conduct of a non-employee agent.

Conclusion

SB 591 represents a return to the original common law concept of intentional misconduct being a prerequisite for an award of punitive damages. 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. 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.   

*Baker Sterchi Member Lisa A. Larkin assisted in the research for this post. 

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The BSCR Healthcare Law Blog examines issues of interest to healthcare providers in emergency departments, hospitals, private practice, ambulatory surgery centers, pharmacies, urgent care centers, EMS, long term care facilities, home health care and more. Learn more about our Healthcare Law practice.

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