Missouri Medical Malpractice - Cause of Action Filed Before Tort Reform and New Party Added After Tort Reform - Not a New Cause of Action Therefore Tort Reform Laws Do Not Apply Despite Addition of New Medical Malpractice Defendant
In early 2005 we filed a medical malpractice and wrongful death claim against an area hospital and surgeon as the result of the death of patient after gastric bypass surgery. In the fall of 2005, after tort reform went into effect on 8/29/2005 radically altering medical malpractice laws in Missouri, we added a medical group that we discovered was the surgeon's employer.
Prior to tort reform venue was in the county where the negligent medical treatment occurred, however, post tort reform medical malpractice wrongful death cases was in the county where the first medical treatment for the medical condition was received. Additional, tort reform gives health care providers additional affirmative defenses that make pursuing these case very difficult under the new laws.
So the question in our case became, whether or not adding the medical group after tort reform constituted a new cause of action and thus requiring the application of the tort reform laws to the newly added defendant.
Missouri Statute ยง538.305 provides that the new medical negligence Tort Reform statutes "apply to all causes of action filed after August 28, 2005." Therefore, is the Amended Petition adding the medical group the same cause of action as the original cause of action, that we filed prior to tort reform?
The Judge in our case ruled in our favor stating that the basic operative facts have not changed and therefore adding the new defendant after tort reform was not a "new cause of action"and therefore the new tort reform laws do not apply to our case. This is a critical ruling and very helpful to Plaintiffs in Missouri pursuing cases filed around the time of tort reform. The Judge ruled that venue does not change, effectively ruling that the new statutes do not apply for any of the tort reform based affirmative defenses raised which would severely hamper our clients' claims.
Thus, I expect the Judge to rule in our favor again and strike the post tort reform defenses raised by the medical group; mainly the non-economic loss caps and critical evidentiary rules.
