Tag Archives: Missouri

Missouri Legislature Looks to Reinstate Medical Malpractice Cap

Note: The article below first appeared in the May 2013 issue of the Medical Liability Monitor, a monthly newsletter reprting on the medical professional liability insurance and risk management industries.

On the heels of last summer’s ruling by the Missouri Supreme Court that the state’s $350,000 cap on non-economic damages in medical liability lawsuits is a violation of Missourians’ constitutional right to a trial by jury, state lawmakers are resolved to reinstate the liability cap.

Last month, the Missouri House of representatives passed HB 112, a bill that would reinstate the $350,000 non-economic damage cap. According to the law’s sponsor, Rep. Eric Burlison, the cap is necessary to attract and retain good doctors in Missouri as well as keep the cost of healthcare from skyrocketing in the state.

“Non-economic damages awards, such as for pain and suffering, are highly subjective and inherently unpredictable [because] there is no market for pain and suffering,” the Missouri Chamber wrote in a brief supporting the bill. “In recent years, a confluence of factors has led to a significant rise in the size of pain-and-suffering awards, creating the need for statutory upper limits to guard against excessive and unpredictable outlier awards.”

“The Supreme Court referenced common law when they ruled that the caps previously in place were unconstitutional,” Burlison replied via email when asked by Medical Liability Monitor how his bill differed from the damage cap recently struck down. “Common law was often put into place as a means of transitioning into a state government without the risk of having lawlessness.  It was not implemented as a means to eternally bind a state to the common laws of the 16th century.

“What HB112 does is exempt the common law reference to medical malpractice liability in the language that first enacted common law in Missouri when we passed our first laws and instead makes a statutory cause of action rather than a common law cause of action.

“By exempting this portion of common law and replacing it with a statutory cause of action, we remove the ability of the Supreme Court to reference common law in the ruling thereby making the medical malpractice caps valid once again.”

UPDATE: According to Southeast Missouri’s Daily Journal Online, HB 112 looks to have stalled in the state senate. Sen. Dan Brown told reporters on April 30 that he no longer felt optimistic that the bill to reinstate a medical malpractice non-economic damage cap would pass. The Missouri Legislature has until May 17 to pass the bill—at which time the body must adjourn.

Missouri Supreme Court Overturns Damage Cap, Doctors Fear Malpractice Insurance Rates Will Skyrocket

On July 31, the Missouri Supreme Court ruled that the state’s $350,000 cap on non-economic damages in medical malpractice lawsuits is unconstitutional. The non-economic damage cap was passed as part of a series of comprehensive tort reforms passed in 2005 and signed into law by then-Gov. Roy Blunt.

Non-economic damage caps bring predictability to a state’s medical liability damages as well as claims frequency, allowing medical malpractice insurance companies to set lower medical malpractice insurance rates because they do not have to factor in the possibility of jackpot, seven-figure jury verdicts. The Missouri Supreme Court’s decision overturning the non-economic damage cap will likely have an inflationary effect on Missouri’s medical malpractice insurance rates.

At the heart of the case is a 2006 jury verdict in the case of a brain-damaged infant. The baby’s mother sued the hospital that delivered her child on the basis that the hospital provided negligent care. The jury agreed, awarding the child $1.45 million in non-economic damages. The judge reduced the dollar amount to $350,000, in keeping with Missouri’s non-economic damage cap in cases of medical malpractice. The mother appealed the reduction in non-economic damages.

The Missouri Supreme Court’s decision to overturn the non-economic damage cap hinged on the state’s constitution, which was established in 1820 and grants its citizens an inviolable right to a trial by jury. The justices in the majority argued that to take away the jury’s ability to set compensation in medical malpractice cases violates the plaintiff’s inviolable right.

In the wake of this recent decision, tort reform advocates have argued the state supreme court had violated 20 years of precedent, as the Missouri Supreme Court had upheld the constitutionality of damage caps in a 1992 case. In breaking from precedent, Chief Justice Richard Teitelman said the 120-year-old decision was wrong. In his opinion, he cited similar high court decisions in Florida, Washington, Oregon and Alabama.

In response to the decision, the hospital at the center of the medical malpractice lawsuit released a statement saying that this decision will adversely affect every hospital and physician in Missouri.

Missouri Supreme Court Considering Non-Economic Damage Caps in Medical Malpractice Cases

The cost of Missouri medical malpractice insurance is at stake as the state’s supreme court is considering whether or not its non-economic damage cap is constitutional. Those opposed to the non-economic damage cap say that it deprives plaintiffs of their due process in the courts as well as due compensation; defenders of the non-economic damage cap say that it keeps Missouri medical malpractice insurance premiums low for the state’s healthcare workers.

Since its enactment in 2005, Missouri’s $350,000 non-economic damage cap on medical malpractice jury verdicts has had a deflationary effect on medical malpractice insurance premiums. According to the Medical Liability Monitor’s Annual Rate Survey data, the high base rate premiums for an OB/Gyn practicing in Missouri fell from $132,314 in 2005 to a high base rate of $93,575 in 2011.

According to the 2005 law, in addition to the creation of the non-economic damage cap, jurors may not be told of the limit when it comes time for deliberations. If the jury verdict is in excess of the $350,000 cap on non-economic damages, the court will adjust the award to be in compliance with the non-economic damage cap. Also per the 2005 law, punitive damages can only be awarded should it be determined that the healthcare professional acted in a willful, wanton and malicious way. In other words, the physician intentionally inflicted harm on the patient.

The case currently challenging the cap on non-economic damages in Missouri involves a child born with cerebral palsy. The child’s mother claims that the cerebral palsy was caused by her physician’s failure to react to fetal distress during delivery. The physicians lack of action, according to the plaintiff, caused catastrophic and disabling brain injuries.

Last year, a jury awarded the plaintiff $4.8 million, including $1.45 million in non-economic damages. After the jury’s declaration, the court reduced the amount of the non-economic damage award to $350,000, in keeping with the cap on non-economic damages.

According to the plaintiff, the non-economic damage cap interfered with the child’s right to a jury trial, violated the state’s constitutional separation of powers and unfairly gives special protection to healthcare workers.

Non-economic damage caps have been recently overturned in Illinois and Georgia; Missouri’s neighbor Kansas is currently waiting for a verdict in a similar case from its supreme court.

Missouri Supreme Court Considering Constitutionality of Medical Malpractice Caps, Threaten Malpractice Insurance Rates

Missouri is one of three states where its Supreme Court is considering the constitutionality of non-economic damage caps in medical malpractice cases. The other two states are Florida and Indiana.

On March 27, the Missouri Supreme Court heard oral arguments in a case where a child was stricken with cerebral palsy and brain damage during his birth in 2006. The mother of the child brought a medical malpractice lawsuit against E. Cox Medical Centers. The jury awarded the woman $1.45 million in non-economic damages, and the judge immediately reduced the non-economic damage award to $350,000—in keeping with the state’s cap on non-economic damages, which was signed into law in 2005.

The courtroom battle over the constitutionality of non-economic damage caps has drawn the attention of groups on both sides of the issue. The AFL-CIO and the Missouri Coalition for Quality Care filed friends of the court, amicus briefs in support of the non-economic damage cap challenge. On the other side, the Missouri Chamber of Commerce filed an amicus brief supporting the constitutionality of non-economic damage caps.

Non-economic damage caps are effective legislative tools for lowering the cost of medical malpractice insurance. The caps add predictability to underwriting formulas that hope to surmise the annual amount of claims payments in a given state. If the medical malpractice insurance companies know that the worst non-economic damages they will have to pay in a single case is $350,000, they will not have to keep reserves adequate to cover multi-million-dollar non-economic damage judgments. The ability to keep the funding of reserves down lets the medical malpractice insurance companies lowering the annual premiums its insureds have to pay.

Both the Illinois and Georgia Supreme Courts have deemed there respective non-economic damage cap legislation to be unconstitutional, stating that the arbitrary caps are a violation of its citizenry’s constitutional right to a trial by jury where the jury decides both liability and damages.

If the Missouri Supreme Court does rule the non-economic damage cap unconstitutional, the state’s healthcare workers can expect medical malpractice insurance premiums to rise.

Missouri Malpractice Insurance Premiums Threatened by Court Case

side note: Medical malpractice insurance premiums are threatened by a case before the Missouri Supreme Court. The state’s high court is currently considering the constitutionality of Missouri’s $1.2 million cap on non-economic, pain-and-suffering damages in medical malpractice cases.

In the case being considered, the plaintiff’s estate was awarded $1 million for past medical bills and $9.2 million in non-economic damages for medical malpractice that resulted in the plaintiff’s death. Because Missouri has a $1.2 million cap on none-economic damages, the verdict was reduced by $8 million. The plaintiff’s estate appealed, arguing the cap violated the state’s constitution by denying the estate a legitimate trial by jury and violates the state’s separation of powers statute. This case is worrisomer because similar arguments have toppled non-economic damage caps in Illinois and Georgia in recent years.

Caps on non-economic damages are effective at lowering medical malpractice insurance premiums. If the Missouri Supreme Court executes similar to Illinois and Georgia, the state’s physicians can expect their premiums to rise.

JEFFERSON CITY – (KMOX/MDN)  The right of those harmed by doctors to collect high-dollar damages came before the seven justices of the Missouri Supreme Court on Wednesday. (continue reading)

Missouri is an example of effective medical malpractice reform

side note: Former-Gov. Blunt touts his state’s tort reform as the answer to healthcare problems and wasteful spending.

Wall Street Journal

There has been a lot of talk in Washington about cutting wasteful health-care spending, but it is troubling that such talk has not created a sense of urgency for national tort reform. It is especially frustrating because states have already shown that curbing junk lawsuits can cut costs, create jobs, and increase the quality of care available to patients.

I know this because that is exactly what happened in Missouri when, as governor, I helped to enact comprehensive reforms.

I took office in January 2005 at a time when runaway lawsuits were driving up the cost of doing business in my state and forcing doctors and other business owners to close their doors. The U.S. Chamber of Commerce Institute for Legal Reform keeps a list of states ranked according to their legal environment. At the time, Missouri ranked among the 10 worst.

“Venue-shopping,” a tactic that involves shifting a case to a friendly court regardless of where the injury occurred, was common. Defendants could be made to pay 100% of a judgment even if they were only 1% responsible for the injury. And caps on damages had been rendered meaningless by state court decisions.

This legal environment raised the cost of health care for everyone and imposed stiff costs on businesses. It also forced doctors to close their doors. For example, the eastern half of Jackson County, one of Missouri’s largest, lost its only neurosurgeons in 2003 due to high malpractice insurance costs. Many other parts of the state suffered from a lack of doctors able to deliver babies. One obstetrician who delivered more than 200 babies annually was forced to quit after his annual med-mal insurance premiums skyrocketed 82% in just one year. Making matters worse, few new doctors wanted to move to Missouri. One Kansas City area doctor sent letters to more than 400 physicians finishing their residencies and did not receive a single response back.

To counteract these problems we required that cases be heard in the county where the alleged injury occurred, and we changed the law so that defendants could only be forced to pay a full judgment if their fault exceeded 50%.

Read entire WSJ article