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Examiner
  • Bob Buckley: The right to sue and the legislature

  • In 2012, the Missouri Supreme Court decided two cases that appear to be inconsistent. A decision in July of last year invalidated the statutory limitations on non-economic damages in medical malpractice cases that do not involve death. Earlier, in April of 2012, a similar case was decided that upheld the limit on non-econo...
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  • In 2012, the Missouri Supreme Court decided two cases that appear to be inconsistent. A decision in July of last year invalidated the statutory limitations on non-economic damages in medical malpractice cases that do not involve death. Earlier, in April of 2012, a similar case was decided that upheld the limit on non-economic damages in wrongful death cases. Although the decisions have an appearance of inconsistency, there is a logical explanation for this schizophrenia.
    Non-economic damages are defined as those arising from non-pecuniary harm such as pain, suffering, mental anguish, inconvenience, physical impairment, disfigurement and loss of capacity to enjoy life. In malpractice wrongful death cases, such damages include loss of consortium, services, companionship, comfort, instruction, guidance, counsel, training, and support. In many cases, these damages are catastrophic.
    In the first decision, a wrongful death case decided by a Jackson County jury, the verdict was well in excess of the caps of $350,000. A challenge was made that the caps or limitations violated the Missouri constitutional right to trial by jury. The basis was that the jury, not the legislature, should decide the amount of damages.
    The Supreme Court decided that the legislature had the right to place restrictions because wrongful death is a cause of action created by the legislature. The rationale is that if the legislature creates the cause of action, it also can impose restrictions.
    On the other hand, malpractice cases that do not involve death are based on the common law that dates back to English law established before the United States even existed.
    For many years, there was no limit on the amount of money that could be recovered in a wrongful death case until the Missouri General Assembly passed legislation in 1986 that imposed limits on non-economic damages in malpractice cases.
    The cap imposed in 1986 was $350,000, but an inflationary clause was included in the cap so that the limit was increased to an amount in excess of $600,000. This was the law of Missouri until the legislature decided in 2005 to roll back the cap on non-economic damages to $350,000 without an inflationary provision.
    The 1986 law was upheld by the Supreme Court in a case decided in 1992 and for the next 13 years we all lived with the caps that had been upheld. After the substantial reduction in 2005, everyone expected a new challenge. The challenge arose when a Jackson County jury rendered a verdict in excess of $1,000,000 in a wrongful death case. The trial judge reduced the verdict to comply with the 2005 limits and the case was appealed to the Missouri Supreme Court, which led to the decision upholding the caps.
    Many of us disagreed with the logic of the case. If the right to trial by jury is inviolate and is the cornerstone of our constitution, how can the legislature blatantly take away that right to trial by jury?
    Page 2 of 2 - While the wrongful death case was on appeal, another case was being appealed after a verdict was rendered in Springfield for an infant who suffered brain damage during labor and delivery as the result of the negligence of a health care provider. The non-economic damage verdict in that case was over $1,000,000, but the judge reduced the amount to $350,000 to comply with the cap.
    Then, just three months after the wrongful death decision, the Supreme Court decided that the caps were unconstitutional in injury cases because they violated the right to trial by jury. Thus, the law of Missouri is that there are no limits on non-economic damages in malpractice cases involving injury, but there are limits in death cases.
    It did not take long for new legislation to be introduced to respond to the July 2012 decision. Senator Brown, a veterinarian from Rolla, has introduced a bill which essentially declares that there is no right to sue for medical malpractice in the common law, even though that right has existed for approximately 400 years.
    Senator Brown’s bill then creates a statutory cause of action in malpractice injury cases with the thought that if the legislature created the right of action, it could restrict such right by placing limits on the right to sue like it did in wrongful death cases. Senator Brown’s bill destroys 400 years of legal precedent. While I can understand the Supreme Court’s schizophrenia in the two non-economic damage cases, it is hard to explain this misguided attempt to change the law. Senator Brown obviously has no respect for legal precedent.
    The bill may pass unless enough brave representatives and senators think that the right to trial by jury is essential to our legal system. Uncertainty will abound in the meantime as we await the legislature’s action and the legal challenge to this unprecedented destruction of the common law that is certain to follow.
    Bob Buckley is an attorney in Independence. Email him at bbuckley@wagblaw.com
     
     
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