Revisions to Punitive Damages in Missouri

Lauren L. Wood

By Lauren L. Wood



Authored by Lauren L. Wood with assistance from Haley E. Gassel, law clerk

personal injuryChanges have been made to punitive damages claims in civil actions filed in Missouri on or after August 28, 2020.

Under the revisions, Missouri Revised Statute Section 510.261 now prohibits parties from making a claim for punitive damages in their initial pleading in a civil action. Any claimant who wishes to add a punitive damages claim to a civil action must file a written motion to amend 120 days prior to the pretrial conference, or, if no conference is scheduled, 120 days prior to trial, seeking leave to bring a claim for punitive damages. The claimant seeking leave must provide exhibits, affidavits, and discovery materials establishing a reasonable basis for the recovery of punitive damages. Any party opposing leave may submit admissible evidence to demonstrate that the standards for a punitive damage award have not been met. The court may grant leave to add the punitive damages claim if it determines that a judge or jury could reasonably conclude, based on clear and convincing evidence, that the standards for a punitive damage award have been met. This statute has the effect of preventing meritless claims being made in litigation as well as saving both the time and money of the parties involved.

Substantive Changes and Clarifications

After clearing the hurdle of obtaining leave to bring a punitive damages claim, a claimant must satisfy the statute’s requirements to receive an award of punitive damages. To do so, RSMo  510.261(1) requires the claimant to prove by clear and convincing evidence that the defendant “intentionally harmed the plaintiff without just cause or acted with a deliberate and flagrant disregard for the safety of others.” The revised statute does three things:

  1. Codifies the original common law regarding punitive damages. In Klingman v. Holmes, 54 Mo. 304, 308 (1873), the first Missouri Supreme Court case allowing an award of punitive damages, the Court held that exemplary damages are only appropriate where an evil intent has manifested itself in acts. The court reasoned that under common law there must have been intent, or positive proof of malice, to justify granting punitive damages.
  2. Clarifies the requisite mental state of the defendant, to intentionally harm without cause or with a deliberate and flagrant disregard for the safety of others. This gives the judge or fact finder a clear standard for determining whether the claimant is entitled to punitive damages.
  3. Codifies the “clear and convincing” burden of proof standard. The Missouri Supreme Court has previously adopted this standard, but it had yet to be codified.[1],[2] The clear and convincing burden of proof standard falls within the middle ground of the ordinary civil burden of proof standard, preponderance of the evidence, and the criminal law standard, beyond a reasonable doubt.

Nominal Damages Continue reading »

Illinois Legislature Passes Bill Allowing for Prejudgment Interest on Personal Injury Claims

Steven A. Ahillen

By Steven A. Ahillen



personal injuryIllinois law traditionally has not allowed for prejudgment interest on personal injury claims, but that rule is about to change. On January 13, 2021, the Illinois legislature passed House Bill 3360. The original purpose of the bill was to amend Illinois law relating to mortgage foreclosures and abandoned residential property. However, Senate Floor Amendment No. 1 modified the bill to introduce prejudgment interest for personal injury claims in Illinois.

Prejudgment interest on personal injury actions was not available under the common law, so generally it is only allowed when authorized by a statute. Illinois HB 3360 provides that in all actions for personal injury or wrongful death, the plaintiff shall recover prejudgment interest on all damages set forth in a subsequent judgment at the interest rate of 9% per annum.

Of note is when prejudgment interest begins to accrue under the bill. Among the jurisdictions allowing prejudgment interest on personal injury claims, a plethora of approaches has emerged for determining the starting point. Some states require the rejection of a formal demand with specific requirements (such as Missouri, § 408.040 RSMo.), others from the date of the loss (such as Florida, Fla. Stat. § 687.01), or still others from the date of the filing of the complaint (such as Michigan, Mich. Comp. Laws § 600.6013). Continue reading »

COVID-19 Vaccines and the Workforce – Mandatory or Encouraged?

Ruth Binger

By Ruth Binger



covid-19 vaccineGetting back to normal in the next year or so may be impossible without the widespread use of COVID-19 vaccines. Although authorities do not anticipate the vaccines will be widely available until Spring 2021, employers should be considering whether to mandate or merely encourage vaccinations in the workforce.

Currently there is no definitive answer regarding mandatory vaccinations, and your plan will depend on many variables. Because this is the first pandemic in our memory and it is all new to us, consider forming a committee to monitor the status of laws, regulations, and guidance from various agencies.

Your business may be one of the lucky ones that navigated the pandemic without causing a loss of morale or culture, operating safely by working remotely, social distancing, wearing masks, and following CDC requirements. If so, setting aside all other factors, you may simply want to encourage vaccinations for the first few months that they are available, especially given potential concerns about the safety and efficacy of the vaccines and the ever-changing laws. You could do this by training and educating employees as to the efficacy of the vaccine, encouraging participation, and offering the vaccine for free (if not covered by insurance) at the workplace during work hours. Continue reading »

Access to Patient Medical Records During COVID-19

Health Care Law Practice Group

By Health Care Law Practice Group



medical recordsIssues relating to a patient’s right of access to medical records have never been more important than now, in the midst of the COVID-19 pandemic.  Healthcare providers, big and small (from a large New York City non-profit providing health care and other services to the homeless population to small psychiatric services providers in Virginia and Colorado), are facing monetary penalties and having to comply with Corrective Action Plans (CAP) imposed by the Office for Civil Rights (OCR) with strict requirements and short deadlines.

One of these psychiatry services providers must distribute new policies and procedures concerning patient requests for records to all members of its workforce and relevant business associates within 30 days and to new employees upon hiring. Recipients are required to execute certification of having read, understood, and promised to abide by these policies and procedures. Training and individual certifications must be completed within 60 days. Going forward, the practice must implement annual training. Any reportable events must be fully investigated and described in a report as part of the full-scale written “Implementation Report.” The practice must submit the report to the U.S. Department of Health and Human Services (HHS) within 120 days. The CAP concludes with a “Final Report,” again containing specific terms and obligations of the psychiatry practice. Continue reading »

Warning to Employers and Medical Providers Alike Regarding Releasing COVID-19 Test Results!

Employment Law Practice Group

By Employment Law Practice Group



So, your furloughed employee[i] is returning to work – Hooray!? Not so fast. Employers and the medical providers who are treating and perhaps testing these employees/patients for COVID-19 need to be wary about who is able to disclose and use testing information and to whom.  Both sides must tread carefully and follow strict guidelines in such situations.

covid test

For over two decades, the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) has governed disclosure of an individual’s protected health information and has prevented a medical provider from unilaterally disclosing sensitive health information to employers.  Even faced with a previously unimaginable global pandemic, from its implementation in 2003, the HIPAA Privacy Rule has had procedures in place that address this thorny legal issue.

Take the following hypothetical example: An employer furloughs an employee as a reduction in work force for financial reasons. While on furlough, the rumor mill is active and the employer “hears” that this employee may have been experiencing COVID-19 symptoms while on furlough.  May the employer reach out to the employee’s medical provider to obtain medical information specifically related to COVID-19 testing? May the provider release such information if the employer contacts the provider to inquire? Work-arounds exist under the HIPAA Privacy Rule or may exist when the employer pays for COVID-19 testing.

Option 1:  Consent Upfront. Continue reading »

Troubling Practices by Hospitals for Patients’ Access to Medical Records Uncovered

Health Care Law Practice Group

By Health Care Law Practice Group



A new study published in JAMA Network Open and conducted by Yale University School of Medicine found troubling practices at U.S. hosmedical recordspitals relating to patients’ access to and provision of patients’ own medical records.  HIPAA’s Privacy Rule absolutely requires access to a medical record when properly requested under two circumstances:  (1) to the patient; and (2) to the Secretary of the Department of Health and Human Services.  Further, the patient must be provided records in his or her preferred format and for a reasonable processing fee.  Shockingly, only 53 percent of the hospitals surveyed provide patients an option to obtain their own medical records.  (Eighty-three top-ranked U.S. hospitals in 29 states were surveyed.)

Continue reading »

Missouri Health Care Legislation Update

Health Care Law Practice Group

By Health Care Law Practice Group



MO HealthNet Program Expands Its Coverage:

  • Section 208.151 (20) RSMo was expanded to include language allowing pregnant women who receive substance abuse treatment within sixty (60) days of giving birth, subject to appropriations and any necessary federal approval, to be eligible for MO HealthNet benefits for substance abuse treatment and mental health services for the treatment of substance abuse for twelve (12) additional months, as long as the woman remains adherent with treatment.
  • With the passage of HB 1516, § 208.152(7), chiropractors are included in the MO HealthNet Program and now allows, . . . subject to appropriation, up to twenty (20) visits per year for services limited to examinations, diagnoses, adjustments, and manipulations and treatments of malpositioned articulations and structures of the body provided by licensed chiropractic physicians practicing within their scope of practice.

CEU Requirements Expanded:

  • As amended, § 324.046 RSMo provides that any Missouri licensed healthcare professional may annually complete training in the areas of “suicide assessment, referral, treatment and management,” which may qualify as part of the continuing education requirements of the professional’s licensing authority with the Division of Professional Registration for renewal of licenses.

Continue reading »

Modernizing Healthcare Legislation in the Face of the Opioid Crisis

Health Care Law Practice Group

By Health Care Law Practice Group



opioid crisis

In 2016, opioid overdoses accounted for more than 42,000 deaths in America. It was estimated that 11.5 million people misused opioid prescriptions and 2.1 million people suffered from an opioid use disorder that same year.[1] From July 2016 to September 2017, the Center for Disease and Prevention found that opioid overdoses increased 30% in 45 states; however, the Midwest region alone saw a 70% increase.[2] On October 26, 2017, President Trump declared the opioid crisis a national Public Health Emergency under federal law.

While the federal government has responded by allotting six billion dollars to assist in the treatment and prevention of opioid overdoses, hospitals and medical providers still face barriers when it comes to the disclosure of medical information related to these overdoses due to conflicts between HIPAA and other federal law. Congress is working to resolve this conflict.

In 2017, the Department of Health and Human Services Office for Civil Rights (OCR) released a new HIPAA Guidance on when and how healthcare providers may share a patient’s health information with his or her family members, friends, and legal representative if the patient is in crisis. Current HIPAA regulations permit (but do not require) healthcare professionals to disclose health information without a patient’s consent if the provider determines that doing so is in the best interest of an incapacitated or unconscious patient and the information shared is directly related to the family or friend’s involvement in the patient’s healthcare or payment of care. This allows a provider to talk to the parents of someone incapacitated by an opioid overdose about the overdose, but generally does not allow disclosure of medical information unrelated to the overdose without the patient’s permission. Continue reading »

The EEOC Catches the Flu: A Cautionary Tale for Employers With Mandatory Flu Vaccination Programs

Katherine M. Flett

By Katherine M. Flett



flu shotAfter enduring one of the worst flu seasons in nearly a decade, there is no question why more employers are instituting mandatory flu vaccination programs. In fact, mandatory flu vaccination programs are increasingly popular for healthcare employees.

No current laws in Missouri or Illinois mandate all health care employees to be vaccinated against the flu. That being said, nursing home employers in Missouri are required to either offer the flu shot to all employees and volunteers who have direct contact with residents, or provide the employees and volunteers with information about how they can obtain the flu shot independently. Similarly, health care employers in Illinois are required to provide all employees with education on influenza, as well as the opportunity to receive the vaccine. Some states, such as California and Maryland, require hospitals to publish their employee vaccination rates to the public.

When instituting a mandatory flu vaccination program, however, an employer should be aware of the possible ramifications of denying or terminating employment for refusal to comply with a mandatory flu vaccination program on the basis of religious beliefs.  Continue reading »

The Intersection of HIPAA and Cloud Storage

Katherine M. Flett

By Katherine M. Flett



Our ever-evolving technological society is raising new questions about how to reconcile complex health data protection laws with cloud storage.  Storage of data in the “cloud” allows users to store, maintain, and manage data remotely on the internet.  Its advantages include accessibility of the cloud-stored data from any location via the internet, emergency back-up capacity, and even cost savings.  An online search for HIPAA-compliant cloud storage companies reveals that there is no shortage of companies who advertise their “HIPAA-compliant cloud services.”  It is important to remember that working with a company who claims their cloud storage “is HIPAA compliant,” does not excuse you from meeting HIPAA requirements.  Due diligence is required when selecting such a company and entering into appropriate contractual arrangements with the companies.

The Department of Health and Human Services’ Office for Civil Rights (“OCR”) is responsible for overseeing protection of sensitive health data under the Health Insurance Portability and Accountability Act, as amended (“HIPAA”). OCR issued guidance on October 6, 2016, explaining how to safeguard electronic health information protected by HIPAA in today’s widespread cloud networking environment.

HIPAA applies to “covered entities,” and this article will focus on one such covered entity, the health care provider.  Most health care providers do not perform all of their health care functions by themselves and instead often use a range of services offered by others, called “business associates” under HIPAA.  Health care providers are permitted to disclose protected health information (“PHI”) to these business associates (“BA”) as long as they obtain satisfactory assurances that the BA will use the information only for the purposes for which it was engaged by the health care provider, will safeguard the information from misuse, and will help the health care provider comply with some of the health care provider’s duties under HIPAA, through the execution of business associate agreements.

Continue reading »