Missouri Supreme Court building
Just a quick update on the tort reform situation in Missouri. Legislators there are looking to bring back the $350,000 cap on non-economic damages for medical malpractice cases the state supreme court struck down last July.
The supreme court, by a slim 4-3 margin, ruled the cap represented an unconstitutional infringement on the right to a jury trial set forth in the Missouri Bill of Rights in 1820. Lieutenant Governor Peter Kinder said the judges acted like “a bunch of termites” in making its decision.
The Missouri State Medical Association sprang into action after the decision and immediately started warning of rapidly increasing malpractice premiums and an exodus of physicians from the state.
The legislature opens its new session this morning and is said to be considering both a constitutional amendment and statutory options. The governor, Jay Nixon (D), has stated he is not opposed to award limits.
I should point out the Republican party has a veto-proof supermajority in both houses (110 0f 163 seats in the House, 24 of 34 seats in the Senate), so what the GOP wants, the GOP gets, and it doesn’t need Democratic votes to get it.
A constitutional amendment, however, requires voter approval.
A reader sent me the following email the MSMA sent its members the other day regarding this issue which I am posting in its entirety:
A decade ago Missouri was mired in a malpractice lawsuit crisis that caused insurance premiums to skyrocket, drove physicians out of the state, and threatened access to care for patients in every corner of the state. In 2005, MSMA succeeded in passing a sweeping Missouri tort reform law, the linchpin of which was a reasonable $350,000 cap on non-economic damages in medical malpractice lawsuits. And the lawsuit crisis abated.
Last summer, by a 4-3 margin (with a substitute judge casting the deciding vote), the Missouri Supreme Court threw out our cap on non-economic damages, leaving Missouri physicians and their professional liability insurers with unlimited risk in malpractice lawsuits. Absolutely unlimited!
Since then, MSMA has been very busy laying plans to reinstate the cap before economic havoc sets in again. As a result, legislation has just been introduced to be debated by the Missouri General Assembly that convenes this Wednesday. And we need your help.
The bills are House Bill 112, by Rep. Eric Burlison, and Senate Bill 105, by Sen. Dan Brown. The leadership in the House and Senate have made this a priority issue for this year, and we are pulling out the stops to get it done.
Please make an effort to contact your state representative and state senator and ask them to support these bills. And please ask your physician colleagues to do the same and to support MSMA in this vitally important battle.
Source: Missouri lawmakers to pursue medical liability limits – KansasCity.com
JEFFERSON CITY — Missouri lawmakers have their eyes on reinstating liability limits for medical malpractice cases after the state Supreme Court struck down an existing cap on damages last summer.
Republicans claim a supermajority when the Legislature meets Wednesday to start the 2013 session, and GOP leaders say restoring the liability limits invalidated by the high court is needed to control health care costs and help keep doctors in Missouri.
“The judiciary, like a bunch of termites, has gone to work undermining that necessary tort reform,” said Republican Lt. Gov. Peter Kinder. “So we’re going to have to go back and do the heavy lifting all over again.”
A significant piece of the Republican effort to curb liability lawsuits was a cap of $350,000 for noneconomic damages such as pain and suffering in medical malpractice cases. Before that, Missouri had an inflation-adjusted cap of $579,000 for noneconomic damages against each defendant for each act of negligence.
The Missouri Supreme Court ruled 4-3 the 2005 law was unconstitutional. The court’s majority pointed to the state constitution’s Bill of Rights, which states “the right of a trial by jury as heretofore enjoyed shall remain inviolate.” Because Missourians had a common-law right to seek damages for medical malpractice claims when the constitution was enacted in 1820, the court concluded any limit on damages that restricts the jury’s fact-finding role violates the constitutional right to trial by jury.
Supporters of reinstating the 2005 damages cap have proposed constitutional amendments and suggested legislation that would eliminate the common0law right to file a lawsuit over health care services while replacing it with a statutory right to sue.
The Missouri State Medical Association said the Legislature has been allowed to limit damages for a cause of action that it creates. Jeff Howell, the association’s director of government relations and general counsel, said doctors’ insurance premiums and health care costs are likely to increase without a limit on liability.
“Now we have unlimited risk, so there’s really nowhere for premiums to go but up,” Howell said. “And when you do that, then you have physicians that practice a lot defensive medicine, they worry more about getting sued and that increases the overall cost of health care.”
Opponents of the damages cap contend the right to a jury trial is the lynchpin for all basic liberties and must be protected.
“It’s a perilous thing to try to accomplish and one that flies in the face of the authors of our Missouri Constitution and frankly our United States Constitution and one that the citizens of this state should be very leery of,” said Tim Dollar, the president of the Missouri Association of Trial Attorneys. “The constitutional right to jury trial is something that’s been a part of our system since its inception.”
Dollar, a lawyer in Kansas City, said the cap is an attempt to carve out a single group and give immunity from negligence while allowing politicians to decide appropriate damages instead of a jury.
This past fall, the state Supreme Court in neighboring Kansas upheld that state’s $250,000 limit on noneconomic damages in medical malpractice cases.
A Missouri constitutional amendment would need to be approved by voters, and legislation passed by the Legislature would go to the governor.
Democratic Gov. Jay Nixon said Friday that it is necessary to look at the court case to determine whether a statutory or constitutional amendment approach is best. He noted Missouri had capped damages previously.
“I think what you need there is predictability in that insurance market, and so I’m not philosophically opposed to some limitation,” he said.
Lawsuit limits amendment: SJR1 and HJR6. Lawsuit limits legislation: SB105 and HB112. Online: Legislature: http://www.moga.mo.gov
It’s fascinating that there are so many doctors harming patients despite the risk of malpractice litigation. I’m not sure that malpractice caps are the answer.
You are right. I have read compelling arguments on both side of the tort reform issue. It does not seem to be as straightforward as hard-core advocates on either side of the argument would have you believe.
It appears that residency training programs (of all specialties) are not concerned with the quality of doctors that they are sending out into the world. Suboptimal medical care and malpractice are far more common than the medical profession either realizes or will acknowledge. Malpractice caps will not address this painful issue.