105.711. Legal expense fund created--officers, employees, agencies, certain health care providers covered, procedure--rules regarding contract procedures and documentation of care--certain claims, lim
Legal expense fund created--officers, employees, agencies, certainhealth care providers covered, procedure--rules regardingcontract procedures and documentation of care--certain claims,limitations--funds not transferable to general revenue--rules.
105.711. 1. There is hereby created a "State Legal Expense Fund"which shall consist of moneys appropriated to the fund by the generalassembly and moneys otherwise credited to such fund pursuant to section105.716.
2. Moneys in the state legal expense fund shall be available for thepayment of any claim or any amount required by any final judgment renderedby a court of competent jurisdiction against:
(1) The state of Missouri, or any agency of the state, pursuant tosection 536.050 or 536.087, RSMo, or section 537.600, RSMo;
(2) Any officer or employee of the state of Missouri or any agency ofthe state, including, without limitation, elected officials, appointees,members of state boards or commissions, and members of the Missourinational guard upon conduct of such officer or employee arising out of andperformed in connection with his or her official duties on behalf of thestate, or any agency of the state, provided that moneys in this fund shallnot be available for payment of claims made under chapter 287, RSMo;
(3) (a) Any physician, psychiatrist, pharmacist, podiatrist,dentist, nurse, or other health care provider licensed to practice inMissouri under the provisions of chapter 330, 332, 334, 335, 336, 337 or338, RSMo, who is employed by the state of Missouri or any agency of thestate under formal contract to conduct disability reviews on behalf of thedepartment of elementary and secondary education or provide services topatients or inmates of state correctional facilities on a part-time basis,and any physician, psychiatrist, pharmacist, podiatrist, dentist, nurse, orother health care provider licensed to practice in Missouri under theprovisions of chapter 330, 332, 334, 335, 336, 337, or 338, RSMo, who isunder formal contract to provide services to patients or inmates at acounty jail on a part-time basis;
(b) Any physician licensed to practice medicine in Missouri under theprovisions of chapter 334, RSMo, and his professional corporation organizedpursuant to chapter 356, RSMo, who is employed by or under contract with acity or county health department organized under chapter 192, RSMo, orchapter 205, RSMo, or a city health department operating under a citycharter, or a combined city-county health department to provide services topatients for medical care caused by pregnancy, delivery, and child care, ifsuch medical services are provided by the physician pursuant to thecontract without compensation or the physician is paid from no other sourcethan a governmental agency except for patient co-payments required byfederal or state law or local ordinance;
(c) Any physician licensed to practice medicine in Missouri under theprovisions of chapter 334, RSMo, who is employed by or under contract witha federally funded community health center organized under Section 315,329, 330 or 340 of the Public Health Services Act (42 U.S.C. 216, 254c) toprovide services to patients for medical care caused by pregnancy,delivery, and child care, if such medical services are provided by thephysician pursuant to the contract or employment agreement withoutcompensation or the physician is paid from no other source than agovernmental agency or such a federally funded community health centerexcept for patient co-payments required by federal or state law or localordinance. In the case of any claim or judgment that arises under thisparagraph, the aggregate of payments from the state legal expense fundshall be limited to a maximum of one million dollars for all claims arisingout of and judgments based upon the same act or acts alleged in a singlecause against any such physician, and shall not exceed one million dollarsfor any one claimant;
(d) Any physician licensed pursuant to chapter 334, RSMo, who isaffiliated with and receives no compensation from a nonprofit entityqualified as exempt from federal taxation under Section 501(c)(3) of theInternal Revenue Code of 1986, as amended, which offers a free healthscreening in any setting or any physician, nurse, physician assistant,dental hygienist, dentist, or other health care professional licensed orregistered under chapter 330, 331, 332, 334, 335, 336, 337, or 338, RSMo,who provides health care services within the scope of his or her license orregistration at a city or county health department organized under chapter192, RSMo, or chapter 205, RSMo, a city health department operating under acity charter, or a combined city-county health department, or a nonprofitcommunity health center qualified as exempt from federal taxation underSection 501(c)(3) of the Internal Revenue Code of 1986, as amended, if suchservices are restricted to primary care and preventive health services,provided that such services shall not include the performance of anabortion, and if such health services are provided by the health careprofessional licensed or registered under chapter 330, 331, 332, 334, 335,336, 337, or 338, RSMo, without compensation. MO HealthNet or Medicarepayments for primary care and preventive health services provided by ahealth care professional licensed or registered under chapter 330, 331,332, 334, 335, 336, 337, or 338, RSMo, who volunteers at a free healthclinic is not compensation for the purpose of this section if the totalpayment is assigned to the free health clinic. For the purposes of thesection, "free health clinic" means a nonprofit community health centerqualified as exempt from federal taxation under Section 501 (c)(3) of theInternal Revenue Code of 1987, as amended, that provides primary care andpreventive health services to people without health insurance coverage forthe services provided without charge. In the case of any claim or judgmentthat arises under this paragraph, the aggregate of payments from the statelegal expense fund shall be limited to a maximum of five hundred thousanddollars, for all claims arising out of and judgments based upon the sameact or acts alleged in a single cause and shall not exceed five hundredthousand dollars for any one claimant, and insurance policies purchasedpursuant to the provisions of section 105.721 shall be limited to fivehundred thousand dollars. Liability or malpractice insurance obtained andmaintained in force by or on behalf of any health care professionallicensed or registered under chapter 330, 331, 332, 334, 335, 336, 337, or338, RSMo, shall not be considered available to pay that portion of ajudgment or claim for which the state legal expense fund is liable underthis paragraph;
(e) Any physician, nurse, physician assistant, dental hygienist, ordentist licensed or registered to practice medicine, nursing, or dentistryor to act as a physician assistant or dental hygienist in Missouri underthe provisions of chapter 332, 334, or 335, RSMo, or lawfully practicing,who provides medical, nursing, or dental treatment within the scope of hislicense or registration to students of a school whether a public, private,or parochial elementary or secondary school or summer camp, if suchphysician's treatment is restricted to primary care and preventive healthservices and if such medical, dental, or nursing services are provided bythe physician, dentist, physician assistant, dental hygienist, or nursewithout compensation. In the case of any claim or judgment that arisesunder this paragraph, the aggregate of payments from the state legalexpense fund shall be limited to a maximum of five hundred thousanddollars, for all claims arising out of and judgments based upon the sameact or acts alleged in a single cause and shall not exceed five hundredthousand dollars for any one claimant, and insurance policies purchasedpursuant to the provisions of section 105.721 shall be limited to fivehundred thousand dollars; or
(f) Any physician licensed under chapter 334, RSMo, or dentistlicensed under chapter 332, RSMo, providing medical care withoutcompensation to an individual referred to his or her care by a city orcounty health department organized under chapter 192 or 205, RSMo, a cityhealth department operating under a city charter, or a combined city-countyhealth department, or nonprofit health center qualified as exempt fromfederal taxation under Section 501(c)(3) of the Internal Revenue Code of1986, as amended, or a federally funded community health center organizedunder Section 315, 329, 330, or 340 of the Public Health Services Act, 42U.S.C. Section 216, 254c; provided that such treatment shall not includethe performance of an abortion. In the case of any claim or judgment thatarises under this paragraph, the aggregate of payments from the state legalexpense fund shall be limited to a maximum of one million dollars for allclaims arising out of and judgments based upon the same act or acts allegedin a single cause and shall not exceed one million dollars for any oneclaimant, and insurance policies purchased under the provisions of section105.721 shall be limited to one million dollars. Liability or malpracticeinsurance obtained and maintained in force by or on behalf of any physicianlicensed under chapter 334, RSMo, or any dentist licensed under chapter332, RSMo, shall not be considered available to pay that portion of ajudgment or claim for which the state legal expense fund is liable underthis paragraph;
(4) Staff employed by the juvenile division of any judicial circuit;
(5) Any attorney licensed to practice law in the state of Missouriwho practices law at or through a nonprofit community social servicescenter qualified as exempt from federal taxation under Section 501(c)(3) ofthe Internal Revenue Code of 1986, as amended, or through any agency of anyfederal, state, or local government, if such legal practice is provided bythe attorney without compensation. In the case of any claim or judgmentthat arises under this subdivision, the aggregate of payments from thestate legal expense fund shall be limited to a maximum of five hundredthousand dollars for all claims arising out of and judgments based upon thesame act or acts alleged in a single cause and shall not exceed fivehundred thousand dollars for any one claimant, and insurance policiespurchased pursuant to the provisions of section 105.721 shall be limited tofive hundred thousand dollars; or
(6) Any social welfare board created under section 205.770, RSMo, andthe members and officers thereof upon conduct of such officer or employeewhile acting in his or her capacity as a board member or officer, and anyphysician, nurse, physician assistant, dental hygienist, dentist, or otherhealth care professional licensed or registered under chapter 330, 331,332, 334, 335, 336, 337, or 338, RSMo, who is referred to provide medicalcare without compensation by the board and who provides health careservices within the scope of his or her license or registration asprescribed by the board.
3. The department of health and senior services shall promulgaterules regarding contract procedures and the documentation of care providedunder paragraphs (b), (c), (d), (e), and (f) of subdivision (3) ofsubsection 2 of this section. The limitation on payments from the statelegal expense fund or any policy of insurance procured pursuant to theprovisions of section 105.721, provided in subsection 7 of this section,shall not apply to any claim or judgment arising under paragraph (a), (b),(c), (d), (e), or (f) of subdivision (3) of subsection 2 of this section.Any claim or judgment arising under paragraph (a), (b), (c), (d), (e), or(f) of subdivision (3) of subsection 2 of this section shall be paid by thestate legal expense fund or any policy of insurance procured pursuant tosection 105.721, to the extent damages are allowed under sections 538.205to 538.235, RSMo. Liability or malpractice insurance obtained andmaintained in force by any health care professional licensed or registeredunder chapter 330, 331, 332, 334, 335, 336, 337, or 338, RSMo, for coverageconcerning his or her private practice and assets shall not be consideredavailable under subsection 7 of this section to pay that portion of ajudgment or claim for which the state legal expense fund is liable underparagraph (a), (b), (c), (d), (e), or (f) of subdivision (3) of subsection2 of this section. However, a health care professional licensed orregistered under chapter 330, 331, 332, 334, 335, 336, 337, or 338, RSMo,may purchase liability or malpractice insurance for coverage of liabilityclaims or judgments based upon care rendered under paragraphs (c), (d),(e), and (f) of subdivision (3) of subsection 2 of this section whichexceed the amount of liability coverage provided by the state legal expensefund under those paragraphs. Even if paragraph (a), (b), (c), (d), (e), or(f) of subdivision (3) of subsection 2 of this section is repealed ormodified, the state legal expense fund shall be available for damages whichoccur while the pertinent paragraph (a), (b), (c), (d), (e), or (f) ofsubdivision (3) of subsection 2 of this section is in effect.
4. The attorney general shall promulgate rules regarding contractprocedures and the documentation of legal practice provided undersubdivision (5) of subsection 2 of this section. The limitation onpayments from the state legal expense fund or any policy of insuranceprocured pursuant to section 105.721 as provided in subsection 7 of thissection shall not apply to any claim or judgment arising under subdivision(5) of subsection 2 of this section. Any claim or judgment arising undersubdivision (5) of subsection 2 of this section shall be paid by the statelegal expense fund or any policy of insurance procured pursuant to section105.721 to the extent damages are allowed under sections 538.205 to538.235, RSMo. Liability or malpractice insurance otherwise obtained andmaintained in force shall not be considered available under subsection 7 ofthis section to pay that portion of a judgment or claim for which the statelegal expense fund is liable under subdivision (5) of subsection 2 of thissection. However, an attorney may obtain liability or malpracticeinsurance for coverage of liability claims or judgments based upon legalpractice rendered under subdivision (5) of subsection 2 of this sectionthat exceed the amount of liability coverage provided by the state legalexpense fund under subdivision (5) of subsection 2 of this section. Evenif subdivision (5) of subsection 2 of this section is repealed or amended,the state legal expense fund shall be available for damages that occurwhile the pertinent subdivision (5) of subsection 2 of this section is ineffect.
5. All payments shall be made from the state legal expense fund bythe commissioner of administration with the approval of the attorneygeneral. Payment from the state legal expense fund of a claim or finaljudgment award against a health care professional licensed or registeredunder chapter 330, 331, 332, 334, 335, 336, 337, or 338, RSMo, described inparagraph (a), (b), (c), (d), (e), or (f) of subdivision (3) of subsection2 of this section, or against an attorney in subdivision (5) of subsection2 of this section, shall only be made for services rendered in accordancewith the conditions of such paragraphs. In the case of any claim orjudgment against an officer or employee of the state or any agency of thestate based upon conduct of such officer or employee arising out of andperformed in connection with his or her official duties on behalf of thestate or any agency of the state that would give rise to a cause of actionunder section 537.600, RSMo, the state legal expense fund shall be liable,excluding punitive damages, for:
(1) Economic damages to any one claimant; and
(2) Up to three hundred fifty thousand dollars for noneconomicdamages. The state legal expense fund shall be the exclusive remedy andshall preclude any other civil actions or proceedings for money damagesarising out of or relating to the same subject matter against the stateofficer or employee, or the officer's or employee's estate. No officer oremployee of the state or any agency of the state shall be individuallyliable in his or her personal capacity for conduct of such officer oremployee arising out of and performed in connection with his or herofficial duties on behalf of the state or any agency of the state. Theprovisions of this subsection shall not apply to any defendant who is notan officer or employee of the state or any agency of the state in anyproceeding against an officer or employee of the state or any agency of thestate. Nothing in this subsection shall limit the rights and remediesotherwise available to a claimant under state law or common law inproceedings where one or more defendants is not an officer or employee ofthe state or any agency of the state.
6. The limitation on awards for noneconomic damages provided for inthis subsection shall be increased or decreased on an annual basiseffective January first of each year in accordance with the Implicit PriceDeflator for Personal Consumption Expenditures as published by the Bureauof Economic Analysis of the United States Department of Commerce. Thecurrent value of the limitation shall be calculated by the director of thedepartment of insurance, financial institutions and professionalregistration, who shall furnish that value to the secretary of state, whoshall publish such value in the Missouri Register as soon after eachJanuary first as practicable, but it shall otherwise be exempt from theprovisions of section 536.021, RSMo.
7. Except as provided in subsection 3 of this section, in the case ofany claim or judgment that arises under sections 537.600 and 537.610, RSMo,against the state of Missouri, or an agency of the state, the aggregate ofpayments from the state legal expense fund and from any policy of insuranceprocured pursuant to the provisions of section 105.721 shall not exceed thelimits of liability as provided in sections 537.600 to 537.610, RSMo. Nopayment shall be made from the state legal expense fund or any policy ofinsurance procured with state funds pursuant to section 105.721 unless anduntil the benefits provided to pay the claim by any other policy ofliability insurance have been exhausted.
8. The provisions of section 33.080, RSMo, notwithstanding, anymoneys remaining to the credit of the state legal expense fund at the endof an appropriation period shall not be transferred to general revenue.
9. Any rule or portion of a rule, as that term is defined in section536.010, RSMo, that is promulgated under the authority delegated insections 105.711 to 105.726 shall become effective only if it has beenpromulgated pursuant to the provisions of chapter 536, RSMo. Nothing inthis section shall be interpreted to repeal or affect the validity of anyrule filed or adopted prior to August 28, 1999, if it fully complied withthe provisions of chapter 536, RSMo. This section and chapter 536, RSMo,are nonseverable and if any of the powers vested with the general assemblypursuant to chapter 536, RSMo, to review, to delay the effective date, orto disapprove and annul a rule are subsequently held unconstitutional, thenthe grant of rulemaking authority and any rule proposed or adopted afterAugust 28, 1999, shall be invalid and void.
(L. 1983 S.B. 275, A.L. 1987 H.B. 667, et al., A.L. 1989 H.B. 408, A.L. 1990 S.B. 765, A.L. 1993 H.B. 564 merged with S.B. 52 merged with S.B. 88 merged with S.B. 180, A.L. 1995 S.B. 3, A.L. 1999 S.B. 295 & 46, A.L. 2004 S.B. 974 merged with S.B. 1211 merged with S.B. 1247, A.L. 2005 H.B. 58 merged with H.B. 353 merged with S.B. 420 & 344, A.L. 2007 S.B. 577, A.L. 2008 S.B. 788, A.L. 2009 S.B. 296)CROSS REFERENCE:
Liability of state and public entities, increases to be effective on certain causes of actions, when, RSMo 537.615
(2005) State legal expense fund provides coverage for St. Louis Board of Police Commissioners as an agency of the state and for St. Louis Police Department officers as officers of the state. Smith v. State, 152 S.W.3d 275 (Mo.banc).