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On May 8, 2015, Govern Jay Nixon (D) signedinto law the latest attempt by Missouri’s Republican legislature to take away a medical negligence victim’s right to full and fair compensation. Yes, the legislature has once again capped medical malpractice damage awards, placing their judgement before that of an independent jury.

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In 2005, the Missouri Legislature capped malpractice awards. In 2012, in Watts v. Cox Medical Centersthe Missouri Supreme Court said the caps, except with regard to death claims, violated the Missouri Constitution by infringing on the common law right to trial by jury. (Because wrongful death claims did not exist at the time the Missouri Constitution was adopted, the caps applicable to such cases were deemed valid.)

So … isn’t that the end of the discussion? Our Supreme Court deemed it unconstitutional, right? Well, apparently our state legislature doesn’t agree with that ruling. So, in Senate Bill 239, the Legislature effectively repealed part of the Missouri Constitution. It legislatively nullified the Missouri Constitution as it applies to doctors and hospitals. And then capped damage awards … again.

Those who uphold the right to trial by jury fought and obtained some concessions. First, the new cap is slightly higher–$400,000 for non-economic damages v. $350,000 under the 2005 law. (Non-economic damages are those other than for lost wages and medical bills.) Second, the new law institutes a 1.7% per year cost of living increase on the cap. Third, and most important, the law creates a second, higher cap for catastrophic injury and death cases.

The law defines “catastrophic injuries” as this involving Quadriplegia, paraplegia, loss of 2 or more limbs, brain injury, major organ system failure and blindness. The cap on non-economic damages for these types of injuries is $700,000. Is that a lot of money? Sure it is. Is that a lot of money if you have been rendered a quadriplegic because of medical negligence and you will never walk, or run or dance at your child’s wedding? Of course it isn’t. Is it a lot of money if an infant is injured and will spend the rest of their life in a nursing home? Obviously it isn’t. It is slightly less insulting than $400,000.
The same $700,000 cap applies to death cases.

Will this new law pass constitutional muster? I strongly doubt it. The Missouri Legislature has decided to selectively repeal a fundamental right granted by the Constitution, and only with regard to a very select group of defendants. Let me make this perfectly clear: These caps do not apply to any other type of injury case. Not auto accidents, not truck accidents. Not product liability claims, nothing. So if you are injured as a result of anyone’s negligence, other than a doctor or hospital, you are entitled to your full Constitutional rights. But not if you are injured by a doctor or a hospital.

In an upcoming post I’ll address what this means to those who might have malpractice cases currently pending.

As reported here, the Missouri Supreme Court, in Watts v. Lester E. Cox Medical Centers declared that caps on medical malpractice cases are unconstitutional. So, if you have a medical malpractice case in Missouri, what does that mean for you?

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First, if your case involves a death, it is not clear whether the limitation on damages is still in effect in those cases. In April, 2012, the same Court upheld caps applied in a medical malpractice wrongful death case. That case, /Sanders v. Ahmed was actually decided based on the pre-2005 law on medical malpractice caps. However, that decision may be read as standing separate from the Watts decision. In short, whether caps apply in wrongful death medical malpractice cases is still an open question.

Second, in cases involving injuries, but not death, the Watts decision is unequivocal. Caps on the amount of damages that a jury can award on cases that existed under the common law, such as medical malpractice claims for injuries, are unconstitutional. Without an amendment to the Missouri Constitution, legislation seeking to impose such limits will not be upheld.

Third, for active cases, and cases yet to be filed, a Court cannot impose a limit on the damages awarded for non-economic injuries, such as pain and suffering. Under the law declared unconstitutional, the amount of those damages was limited to $350,000. While that may seem like a lot of money, in situations involving life long injury and disability, it is readily apparent that the limitation was crippling. Children injured a birth, who would deal with life-long disability, were not fully compensated. Now, that restriction is lifted.

Fourth, if you have had a medical malpractice case resolved under the old law, whether it resulted in a judgment or a settlement, you won’t be able to go back and re-open those cases to achieve a bigger settlement or verdict. If the decision wasn’t appealed, then the case is final and you won’t be able to reopen it.

Obviously, the actual monetary affect on a particular case is going to vary. If you have a current medical malpractice case you should consult with your attorney about the impact. If you believe that you or a loved one was injured as a result of medical malpractice and would like to discuss your case, please call 1-800-567-8176 for a consultation.

There has been a lot of discussions in recent months on abolishing the Missouri Court Plan, which provides that, in all appellate courts, including the Missouri Supreme Court, and some county courts, judges will be appointed by the governor from an approved and vetted panel. Those judges will then stand for retention in an election. This has been how Missouri selects and retains its judges for many years. The plan is so successful, that it is hailed around the country as a model to be followed.

But, since Democrat Governor Jay Nixon was elected in 2008, conservatives and business political groups have called for an end to the Missouri Court Plan. (Never mind that they had no problem with the plan when a Republican was doing the appointing …) It has become a main attack point in these highly partisan political times.

Dismantling the Missouri Court Plan is a bad idea. A very bad idea. And you have to look no further than our neighbor Illinois to know why. Illinois elects its judges, including Supreme Court justices. And tens of millions of dollars have been spent in those campaigns in recent years. And what do contributors get for their money? Anything they want.

This article from the Chicago Tribune tells the story in all its sordid detail. Basically, Justice Lloyd Karmeier, a southern Illinois Republican, was elected to the Illinois Supreme Court in 2004 in a race that cost over $9,000,000.

A $1.18 billion dollar judgment had been entered against State Farm if a class action case for breach of contract in providing non-original manufacturer parts in its collision repairs and hiding that fact from its insureds. The 5th Circuit Court of Appeals upheld the judgment and then it mades its way to the Illinois Supreme Court.

In filings with the Illinois Supreme Court this week, attorneys for the plaintiffs have alleged and provided supporting documents to demonstrate that Justice Karmeier was actually recruited by State Farm to run for the seat on the Illinois Supreme Court in anticipation of the case being heard. These Court filings indicate that directly and through other entities, State Farm donated between $2.5 million and $4 million dollars to Karemeier’s campaign.

Obviously, I don’t know whether these allegations are true or not. If they are true, it is an eerie parallel to supposed fiction, like John Grisham’s “The Appeal”. If it is true, it is a one of the greatest acts of fraud ever perpetrated.

And even if its not true, it just goes to show you that, inherently, electing judges is fraught with danger. Compare it to the recent Republican debate, in which Governor Perry of Texas said “I’m offended that you think I could be bought with $5,000.” Left unsaid was that he could be bought for $350,000 in campaign contributions. If these allegations are true, State Farm made a damn good investment in Justice Karmeier. $4,000,000 to overturn a $1+ billion dollar judgment? Sounds like a hell of a return on their investment to me.

The Missouri Board of Healing Arts, the entity that disciplines doctors in Missouri, has been given new powers by the legislature, and those changes to the law have now gone into effect, reports the St. Louis Post Dispatch. That’s a good thing. Among other things, the new law makes it easier for the Missouri Board of Healing Arts to suspend a doctors license on an emergency basis. Probably of most use to the average patient, the new law provides a way for patients to learn more about their doctors, including licenses, board certification, discipline and whether the doctor has been disciplined by another state. Previously this information was literally a state secret. The Missouri Board of Healing Arts didn’t disclose that information.

These changes should make the Missouri Board of Healing Arts more adept at disciplining dangerous doctors. You would think so. But the Board’s first action since the law took effect belies that thought.

You may recall the series of articles the Post Dispatch ran in late 2010 exposing the dismal record of the Board in disciplining doctors in Missouri. One of the featured “doctors” was Krishnarao V. Rednam, who was convicted of overcharging patients and their insurance companies more than $600,000 and destroying patient records. He would bill Medicare for expensive drugs but inject his patients at the St. Louis Eye Clinic with watered down doses or substitute experimental drugs. Rednam was sentenced to 6 months in prison and 4 months of home confinement and ordered to pay more than $400,000 in restitution and fines.

In one of the few cases where the Board of Healing Arts actually acted, it revoked his license until at least 2015. Mind you, this action came only after he had been convicted. But in a stunning reversal, Rednam appealed to the Board to allow him to regain his license. And, reports the St. Louis Post Dispatch, the Board granted that request.

Rednam’s excuse for his actions that led to his conviction? Irrational insanity! Irrational insanity–and you give him back his license to practice medicine? Are you kidding? Know what I call that?

Irrational Insanity.

H.R. 1063 known as the Strengthening Medicare and Repaying Taxpayers Act of 2011 has done what seemingly nothing else has ever done–it has gotten wide spread support from groups as diverse as the American Association for Justice (the preeminent trial lawyers organization in the United States), the Chamber of Commerce (usually opposed to anything and everything supported by the AAJ), and companies like Walmart, Best Buy and Disney. Its being co-sponsored by Republicans Ron Paul, Tim Murphy, Don Young and Howard Cable, along with Democrats Ron Kind, Diana DeGette, Linda Sanchez and Tammy Baldwin.

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So what brings this diverse group of backers together? Strengthening Medicare and Repaying Taxpayers Act of 2011 will reform the way people deal with Medicare when they have a claim for personal injury. Medicare requires that when a person is injured due to someone else’s negligence, whether it is by medical malpractice, an auto accident, a fall, or any other incident where someone else is at fault, and they are receiving Medicare benefits, then Medicare is entitled to be reimbursed for the money it has spent providing medical care. That’s certainly fair. However, the Medicare bureaucracy now does not allow the Medicare recipient to find out how much Medicare is claiming they have paid for that medical care until after a settlement has been reached. This ridiculous rule puts claimants, their attorneys, defendants and their insurers, in the ridiculous position of trying to guess how much Medicare will want to be repaid.

Strengthening Medicare and Repaying Taxpayers Act of 2011 simply requires Medicare to provide that information before a settlement is reached. Simple and fair. The result will be that Medicare (meaning the taxpayers) will receive reimbursement faster. And why wouldn’t that be a good thing?

Call or write your congresman and ask them to please support H.R. 1063 known as the Strengthening Medicare and Repaying Taxpayers Act of 2011.

The St. Louis Post Dispatch has reported that Illinois Governor Pat Quinn has signed into law an amendment to the Workers Compensation Law that bars those who are injured while committing a crime from collecting benefits.

The law was spurred by the case of Matt Mitchell, an Illinois State trooper who was convicted of reckless homicide for the deaths of sisters Kelli and Jessica Uhl in 2007. Mitchell was driving his patrol car at speeds in excess of 100 mph responding to a call while texting and operating the patrol car’s computer.

Gov. Jay Nixon has signed Missouri House Bill 265 which will, hopefully, strengthen the Missouri Board of Healing Arts’ ability to discipline the worst physicians. The new law gives the Board the ability to discipline doctors without going through the state administrative hearing commission, a process that could take 2 years or more.

Another critical feature of the bill is that, for the first time, information that was formerly confidential will be released, such as a doctor’s educational background, speciality certifications, disciplinary record in other states and pending discipline cases. In the past only the doctor’s name, address, license date and previous Missouri discipline was publicly available.

As with anything, by making additional information available to patients, it allows the patients to be better consumers of medical services. As the Post Dispatch reports, this law is supported by patient advocacy groups including the Consumers Union’s Safe Patient Project.

The bill was inspired by the 2010 Post-Dispatch Series Who Protects The Patients which ran in December 2010.

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