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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 So, in Senate Bill 239, the Legislature effectively repealed part of the Missouri Constitution.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.

On July 31, 2012, the Missouri Supreme Court issued its opinion in the case of Watts v Lester E. Cox Medical Centers. In a well-reasoned and detailed opinion by Chief Justice Richard B. Teitleman, the Court found unconstitutional the legislatively imposed limitations on damages that a jury can award in medical malpractice case found in §538.210 of the Revised Statutes of Missouri.

The law, passed as a component of sweeping changes to tort law in 2005, placed a limit of $350,000 on non-economic damages that could be awarded in a medical malpractice case.

The Missouri Supreme Court found that the limitation infringed on a jury’s duty, under the Missouri Constitution, to determine the facts in a medical malpractice case. One of the facts that a jury is charged with determining is the amount of the damages. Because the Missouri Constitution declares that the right a jury shall remain inviolate, the Supreme Court looked to whether the right to a jury, as it existed at the time the Missouri Constitution was adopted, included the right to have a jury determine damages. The Court held that it did and, therefore, §538.220 infringed on that right and was, therefore, unconstitutional.

The result is that a jury is not artificially limited in the amount of damages it can award. Of course, the jury’s judgment is still subject to review and revision by the Courts, both at the trial and appellate level. Either can chose to reduce an award based on the judicial power of remittitur.

The Kansas City Star is reporting on the changes in recent Federal regulations that prohibit journalists and others from using information contained in public databases to identify physicians with dozens of instances of medical malpractice and violations of drug regulations. You can read the full story here.

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The Star describes a physician, known only as “Practitioner 222117″ who may be the most frequently disciplined doctor in America. I’m jaded. Doing what I do, I’ve seen many instances of hospitals and practices covering up bad doctors. I thought I couldn’t be shocked anymore. This shocked me:

According to the Star’s review of the Federal database, Practitioner 222117, in just a 4 year span from 2002 through 2006, had his (or her) license suspended or revoked in 20 states and the District of Columbia! Two professional societies took away his memberships. The Department of Health and Human Services banned the doctor from billing Medicare and Medicaid. And the Drug Enforcement Administration revoked the doctor’s permit to prescribe controlled drugs. For most of that time, his home base was Missouri.

And yet, federal regulations prohibit the Star from cross-checking records and identifying this “doctor.”

Other physicians which reporters are no longer allowed to identify:

A surgeon who lost or settled 247 malpractice cases in California in the 1990s.

A doctor who had drug or alcohol problems and has been in and out of trouble since 1991 with hospitals and licensing boards in at least 5 states.

A Missouri doctor whose staff privileges were suspended or reduced by hospitals 7 times and voluntarily surrendered hospital privileges on 4 other occasions.

And HHS is publishing rules to prohibit anyone from using their database to identify and out these people? Are you kidding me?

This is why I do what I do. At least on a case by case basis, I can help someone get justice.

/STLMedical Malpractice.com

HendricksonLaw.com

If you are interested at all in our justice system, I highly recommend the American Association for Justice’s blog Fighting For Justice.

Today, more than ever, American’s right to access the justice system is under attack. Everyone should stand for strengthening our justice system, not weakening by imposing laws which limit individuals access to the system in order to protect the interests of multi-billion dollar corporations and insurance companies.

Don’t be fooled by rhetoric that tries to say that “tort reform” will protect doctors and small businesses. The statistics show that simply isn’t true. The only ones to benefit from these reforms are the insurance companies, who see their profits rise every time new restrictions are put in to place, and then do nothing to pass on their savings to their insureds.

Doctors and small businesses should band together with those of us who spend our lives protecting the individual and fight for insurance reform, not tort deform.