Supreme Court of Missouri Upholds Constitutionality of Noneconomic Damage Cap in Case Against Healthcare ProviderAugust 24, 2021 | John Mahon, Jr. and Terrence O'Toole, Jr.
The Supreme Court of Missouri, in a case filed against a healthcare provider defendant, has upheld the constitutionality of Missouri’s statutory noneconomic damage cap. The Velazquez v. University Physician Associates case had been closely monitored by various stakeholders, because the case has significant implications for patients and healthcare providers, as well as other litigants. The Court also analyzed another important cap related issue in determining which cap year is appropriate to apply the statutory cost of living escalator to account for inflation.
Procedurally, the case involved cross-appeals from plaintiff as to the trial court’s reduction of damages, and the healthcare provider defendants’ appeal of the plaintiff verdict on several grounds. The plaintiff had alleged negligence in the cesarean delivery of her child and in her postpartum care. The jury found in plaintiff’s favor, allocating 100% of fault to the physician defendants. The jury awarded $30,000 in economic damages and $1 million in noneconomic damages. The trial court granted the physicians’ Motions for Remittitur asking the court to reduce the total noneconomic damage award to $400,000. The plaintiff opposed these Motions by making a constitutional objection and arguing that the higher noneconomic damage cap amount for “catastrophic” personal injury applied. The trial court did not find the noneconomic damage caps to be unconstitutional and agreed with plaintiff that the higher cap amount applied, thereby reducing the noneconomic damage award from $1M to $748,828 (using the 2019 cap year because that was the trial year).
The Noneconomic Damage Caps Do Not Violate
the Missouri Constitution's Right to Trial by Jury
On appeal, plaintiff argued the noneconomic damage caps violated her constitutional right to trial by jury as it existed at common law before the State Constitution’s first adoption in 1820. The Court addressed and rejected this same argument in the 2012 Sanders v. Ahmed decision, where the Court held that wrongful death is a statutory cause of action that did not exist at common law, and therefore the Legislature has the power to define the remedy available (and impose damage caps) since it created the cause of action. The Sanders decision reached the opposite conclusion of the 2012 Watts v. Lester E. Cox Medical Center case, in which the Court declared the noneconomic damage caps unconstitutional in medical negligence actions because they were common law claims rather than statutory claims.
The Velazquez Court found that Watts did not control because in 2015, the Legislature amended certain statutes to provide a new statutory cause of action to replace the common law claim for damages against a healthcare provider. The Court found the Legislature has the authority to abolish common-law causes of action, as it had done before when it abolished certain common-law negligence claims against employers by enacting a statutory workers’ compensation scheme. Thus, because all medical negligence actions are now statutory causes of action, and the Legislature has the authority to enact statutory noneconomic damage caps, the current noneconomic damage caps do not violate the constitutional right to trial by jury.
Judge Draper was the lone dissenter from the Court’s ruling, arguing that the principal opinion provides the Legislature with unfettered authority to limit the constitutional right to trial by jury through hostile legislation when, in fact, Missouri voters are the only ones with the power to change the Constitution. In his view, the 2015 statutory revisions were a “blatant end run” around the Missouri Constitution's right of trial by jury because they converted the common law medical malpractice cause of action into a statutory one merely to impose the same statutory caps the Court previously struck down for infringing on the right to trial by jury. Judge Draper argues that the principal opinion erodes the right of trial by jury to a mere privilege that may be withdrawn by legislative prerogative.
The Applicable Noneconomic Damage Cap is Based on Trial Year
Rather than Year of Underlying Injury
The Velazquez Court rejected the healthcare provider defendants’ argument that applying the noneconomic damage cap at the time of trial (2019 – $748,828) – rather than the cap in effect at the time of the alleged injury (2015 – $700,000) – violated protections afforded by the Missouri Constitution against retrospective application of law.
Noting that § 538.210.8, RSMo. “unambiguously express[ed] the legislative intent that a plaintiff’s non-economic damages award be protected from inflation,” the annual adjustment for inflation merely affected a procedure or remedy and did not run afoul of the constitutional proscription against retrospective laws. As a result, the Court held that the determination of the applicable noneconomic damage cap year is based on the time of trial, not the time of injury, and upheld the trial court’s reduction of the noneconomic damages to $748,828 using the 2019 cap year.
The Velazquez decision is an important victory for Missouri healthcare providers because it affirms the constitutionality of the noneconomic damage caps in cases against healthcare provider defendants. This affords the parties in those cases greater predictability in in terms of case value. The decision also provides courts and litigants clarity as to which cap year applies to pending and future cases.
COVID Liability Bill Update - Governor Signs Legislation Shielding Healthcare Providers and Others From Most COVID-Related LawsuitsJuly 27, 2021 | John Mahon, Jr.
As discussed in our June 1, 2021, blog post, the Missouri Legislature passed a COVID liability bill (SB 51) that contains protections for healthcare providers, manufacturers, and other businesses from tort liability related to the COVID-19 pandemic. On July 7, Governor Parson signed the legislation, which has an effective date of August 28, 2021.
Whether COVID-19 tort liability protections are reasonable and necessary is a hotly debated topic among various stakeholders, including the Missouri Chamber of Commerce, the American Medical Association, and trial lawyer organizations. Proponents of the new law believe it is critical to the State's economic recovery and to stopping those who would seek to profit from the pandemic. Opponents argue that the law will provide blanket immunity to negligent nursing homes and others who harm innocent Missourians.
As discussed in our December 21, 2020 blog post, Governor Parson has encouraged lawmakers to author this sort of tort liability legislation since at least November 2020, when he issued a written proclamation on the topic. SB 51 passed the Missouri Senate in February 2021. A key benefit of the bill to defendants generally is protection from suits stemming from COVID-19 exposures unless a plaintiff can show clear and convincing evidence of recklessness or willful misconduct and the exposure caused personal injury.
There are protections in the bill specific to healthcare providers. In the healthcare context, the bill states that “[a]n elective procedure that is delayed for good cause shall not be considered recklessness or willful misconduct.” There is also a shortened limitations period for bringing a COVID-19 medical liability action. Such an action “may not be commenced in any Missouri court later than one year after the date of the discovery of the alleged harm, damage, breach, or tort unless tolled for proof of fraud, intentional concealment, or the presence of a foreign body which has no therapeutic or diagnostic purpose or effect.”
The bill also limits punitive damages in a COVID-19 related action to a maximum of nine times the compensatory damages. However, § 510.265, RSMo. (2005), may provide greater protection to healthcare provider defendants, in that it limits punitive damages to $500,000, or five times the net amount of the judgment awarded to the plaintiff, whichever is greater.
SB 51 comes in the wake of the filing of thousands of COVID-related lawsuits nationally. Missouri alone has seen more than 140 COVID-related suits since the start of 2020. One potential unintended consequence of this legislation could be a sharp rise in COVID-related suits filed hastily in Missouri courts during the several weeks leading up to the August 28 effective date to circumvent the new law. Should this occur, many of these suits could be meritless and lacking adequate pre-suit investigation.
Missouri will not be alone in providing COVID-19 tort liability protections. Other states have done so through executive order and/or legislative action. In addition, federal liability protections are already available under the 2005 Public Readiness and Emergency Preparedness (PREP) Act, which provides immunity to certain defendants, including healthcare provider defendants in certain situations.
We will continue to monitor the implementation of this new law and its impact on our courts.
Missouri Court of Appeals Holds Trial Court Properly Refused To Allow Plaintiff's Counsel to Cross-Examine a Defense Expert on Subject Matter Outside His Area of Medical ExpertiseJuly 13, 2021 | John Mahon, Jr.
In Dalbey v. Heartland Regional Medical Center, the Missouri Court of Appeals, Western District, affirmed a defense verdict in favor of an emergency room doctor and hospital in a medical negligence suit alleging that the doctor failed to diagnose a brain aneurysm that ruptured, hemorrhaged, and caused permanent brain injury. At the conclusion of a nine-day jury trial, the plaintiff’s attorney asked the jury to consider more than $9 million in damages.
On appeal, one of the plaintiff’s claims of error was that the trial judge improperly prohibited his attorney from cross-examining a defense neuro-critical care expert about his opinion whether the emergency room doctor breached the standard of care. But the Court of Appeals applied Missouri Supreme Court precedent and ruled that although a physician practicing one specialty might be qualified to offer a standard care opinion concerning the conduct of a physician practicing in another specialty, a trial court need not admit testimony from a physician expert who denies knowledge of the standard of care for another specialty practice area.
A brief synopsis of the underlying medical events provides context for the trial and appellate issues that followed. During the ER encounter at issue, the ER doctor diagnosed the plaintiff with gastritis or a peptic ulcer, prescribed Prilosec, and discharged him with the recommendation to pursue a follow-up endoscopy. The plaintiff reported a history of nausea, decreased appetite, and passing out after vomiting blood. On physical exam, the ER doctor found plaintiff neurologically normal, and he concluded plaintiff fainted because of a vasovagal episode triggered when he saw his own blood after vomiting.
Less than one month later, the plaintiff returned to the same hospital by ambulance with severe headache and altered mental status. While in the ER, he suffered a seizure. The same ER doctor was on duty and ordered a head CT scan that revealed a ruptured intracranial aneurysm with intracerebral hemorrhage. The plaintiff was life flighted to a tertiary care center for neurosurgical intervention.
The central claim at trial was that the ER doctor was negligent in failing to order a head CT scan on the first encounter, as earlier diagnostic testing would have revealed the brain aneurysm and/or a small bleed, and timely treatment would have prevented the rupture and large hemorrhage that followed. The claim against the hospital was based solely on vicarious liability for the ER doctor’s alleged negligence.
The defense case included testimony from a neuro-critical care expert, not on the standard of care for the ER doctor, but in support of the defense position that the aneurysm had not likely ruptured until the time of the second encounter and was not preceded by a bleed that could have been identified on CT imaging during the first encounter. The neuro-critical care expert testified the plaintiff’s presentation during the first encounter, including a history of syncope and vomiting blood, a normal neurological examination, and no report of pain, was not consistent with an active brain hemorrhage.
Plaintiff’s counsel attempted to cross-examine the neuro-critical care expert to elicit standard of care opinions against the defendant ER doctor. Defense counsel objected, contending that the expert practiced in a different specialty area than the defendant ER doctor, the defense had not disclosed the physician as an expert on the standard of care for an ER doctor, and that plaintiff's counsel's questioning was outside the scope of the defense’s direct examination. The court permitted plaintiff's counsel to conduct a voir dire examination outside the presence of the jury, during which the expert testified he had no intention of offering standard care testimony, as he was unfamiliar with the standard care for an ER doctor. Ultimately, before the jury, the neuro-critical care expert admitted that, if consulted during the first encounter, he would have ordered a head CT, assuming the plaintiff’s version of events were true (which differed significantly from the defense’s description as documented in the medical records).
Citing Missouri Supreme Court case law, the Court of Appeals held the trial court did not err in prohibiting plaintiff’s counsel from cross-examining the defense expert about the standard of care for an ER doctor. The rule is that while a physician practicing in one specialty might be qualified to offer a standard of care opinion concerning the conduct of a physician practicing in a different specialty area, this does not mean the trial court is required to admit testimony from a physician, like the neuro-critical care expert here, who denies knowledge of the applicable standard of care. The court found the plaintiff suffered no prejudice because the jury did not hear the expert’s “expression of agnosticism.” The court permitted plaintiff's counsel to elicit testimony from the expert that, if plaintiff’s version of events were true, he would have been concerned about an intracranial problem and potential hemorrhage and would have undertaken further neurological investigation. But the jury apparently did not agree with the plaintiff’s version of the underlying facts.This case demonstrates some of the practical considerations involved in presenting expert medical testimony at trial from multiple experts in different specialty practice areas. For example, it is not difficult to find an expert witness who is willing to testify outside his/her own specialty area and criticize another physician with another specialty board certification, which can raise credibility questions. However, even when a defense expert is unwilling to testify outside his practice “lane,” there is still a danger that an effective plaintiff attorney could cause the witness to concede points that are not helpful to the defense position at trial. This is particularly true when, as here, the expert has additional specialty training and more narrowly focused experience (for example, with neurological issues) beyond that of the defendant physician whose practice is more generalist (such as emergency medicine).
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