In 2012, the Missouri Supreme Court ruled in the case of Watts v. Cox Medical Center that the previously enacted tort reform statutory cap on medical malpractice damages was unconstitutional as it violated a plaintiff’s right to trial by jury. In its explanation, the Court noted the existence of a common law claim for medical negligence prior to the State Constitution’s adoption in 1820. As a result, language in the Missouri Constitution rendered those claims “inviolate” and damages could not be limited by the legislature. From time to time, bills have been brought before the State bodies in an attempt to try and reinstate caps; however, no effort has been successful or serious until now.
Senate Bill No. 239 recently passed the Senate on a 28 to 2 vote setting up the real possibility that medical malpractice caps are coming back to Missouri. In an attempt to get around the reasoning set forth in the Watts, the legislators specifically set forth medical malpractice as a statutory cause of action replacing any common law cause of action. Based on the language of the Court’s interpretation of the Wrongful Death statute and the continuing application of caps to those cases, this should be enough to pass judicial review, at least on that issue.
A Jefferson City source informs us that the contents of the Senate Bill have been negotiated among all interested parties and that the Senate Bill represents a compromise either directly or tacitly agreed to by the major players on the issue. As a result, if the Bill should pass the House and land on the Governor’s desk, it will arrive there as a fully negotiated and compromised legislation. Because it has this support, the Bill has as good a chance as any for becoming law. At this point the Governor’s position on signing such a Bill is unknown.
Unlike the previous attempt at setting forth a cap in medical malpractice cases, Senate Bill No. 239 takes a different approach more along the lines of a worker’s compensation in that injuries are stratified and paid different amounts depending on their seriousness. For example a catastrophic personal injury defined as “quadriplegic, paraplegia, loss of two or more limbs, brain injury, failure of a major organ system or vision loss” is capped at $700,000 in non-economic damages. A “non-catastrophic” injury is capped at $400,000 in non-economic damages. Economic damages remain uncapped.
One of the primary concerns of the original tort reform bill was that the cap stayed at $350,000 without any mechanism for cost of living or CPI increases. In answer to this criticism, Senate Bill No. 239 is not a static, unchanging cap. The Bill allows for an increase in the amount of the cap by 1.7% per year.
As a side note, a bill attempting to reinstate caps was passed by the House about a week prior to Senate Bill No. 239. That bill’s only difference from the original tort reform bill was to set forth medical malpractice as a statutory cause of action. In the House version of the bill, the cap was set at $350,000 and no provision for increase or stratification of award was considered. There is no doubt that the House’s version of the Bill would not pass in the Senate.
At this point it is not clear what will happen next with the Senate Bill. However, it does show some promise for practitioners and their clients who are looking for caps on medical negligence damages.