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.