It’s Déjà Vu All Over Again: Missouri Enacts New Medical Malpractice Damage Caps in Missouri

“If at first you don’t succeed.  Try, try, again.”

 Thomas H. Palmer, Teacher’s Manual

On May 7^th, 2015, Missouri Governor Jay Nixon signed a measure resurrecting medical malpractice caps in Missouri.  Mary French, Missouri Medical Malpractice Caps Signed into Law, St. Louis Post Dispatch, May 8^th, 2015, http://goo.gl/IWIHG7.  The new measure was enacted just three short years after the Missouri Supreme Court struck down non-economic damages caps for common law medical negligence cases as unconstitutional.  Id.  This 2015 attempt by the legislature to institute such caps in Missouri is a much more complicated attempt to apply non-economic damages caps. It also appears the Missouri General Assembly is taking a swing at using legislation to abolish a common law cause of action for medical negligence and replace it with a purely statutory one so that it can avoid constitutional challenges to such damage caps.

Prior Attempts by Statute to Limit Medical Malpractice Claims in Missouri

Missouri has been attempting to cap medical practice damages since 1986 through Missouri Revised Statutes chapter 538, “Tort Actions Based on Improper Health Care.” Rachel Lawrence, Constitutionality of Caps: Upholding Missouri’s Right to Jury Trial and the Non-Economic Damages Debate, The, 78 Mo. L. Rev. 601-02 (2013), http://goo.gl/pxTus9.  Contained within its sections, these various versions of chapter 538 have always included limits on non-economic damages.  Id. at 602.  Missouri’s first attempt to cap medical malpractice damages in 1986, limited a plaintiff’s recovery to $350,000, and adjusted that amount yearly by the Missouri Department of Insurance to reflect inflation.  Id. at 605.  By 2005, the limit had reached $579,000.  Id. at 606.  In addition, plaintiffs could recover multiple caps from one injury when there were multiple defendants.  Id.  On August 28^th, 2005, the Missouri Legislature decided to change the medical malpractice caps again, by returning the non-economic damages cap to $350,000 with no yearly modification allowed due to inflation, and limiting recovery to one cap per plaintiff no matter the number of defendants.  Id.

What are the ideas driving those in favor of and those against medical malpractice reforms including caps?  Democrats and Personal Injury Attorneys believe that seriously injured people are being unfairly punished and denied their constitutional rights to pursue their claims for damages by these statutory restrictions on what a jury is permitted to award.  Barbara A. Geisman, Reform or Reshuffle?  Consequences of the 2005 Missouri Tort Reform Act, 42 Wash. U. J. L. & Pol’y 156 (2013).  http://goo.gl/4E276n.  Republican elected officials and conservative “think tanks” along with businesses claim that tort reform legislation like §538.210 have improved Missouri’s business climate and lowered both the number of personal injury claims filed and the cost of medical malpractice insurance.  Id. at 157.  Unfortunately, it does not appear that there is enough data to back up the claims on either side completely as to what the outcome of over 26 years of tort reform legislation has actually been.  Id. at 184-6.[1]

The Courts Take on Non-Economic Damages Caps

The judicial history of non-economic damages caps under §538.210 has certainly been an interesting one.  The three following cases are probably the most cited on this particular issue.  In Adams By and Through Adams v. Children’s Mercy Hosp., 832 S.W.2d 898 (Mo. Banc. 1992), the Missouri Supreme Court initially held that caps on non-economic damages applied to medical malpractice claims of any sort pursuant to §538.210 were constitutional.  Adams involved the death of an 8 year old girl due to medical negligence.  Id. at 900-01.  The jury found the Adams family had suffered damages in excess of 20 million, which included over 13 million in “non-economic damages.”  Id.  The trial court reduced the non-economic damages as directed by §538.210.  Id.   On Appeal, the Missouri Supreme Court considered several constitutional challenges to §538.210 and determined that the non-economic damages caps as contained in the statute did not violate the Missouri Constitution.[2]  Relevant to the more current analysis by the Court, was the holding in Adams that because the non-economic damages cap was not applied until after the jury had already completed its constitutional task of deciding the amount of damages, the cap did not infringe upon the right to a jury trial.  Id. at 907.  Post Adams, the Missouri General Assembly then enacted new statutory non-economic damages caps in 2005.

Then on April 3^rd, 2012, the Supreme Court handed down a ruling regarding the 2005 non-economic damages caps in the case of Sanders v. Ahmed, 364 S.W. 3d 195 (2012).  Sanders also involved a wrongful death cause of action.  Id. at 195.  The Court first noted that Missouri did not recognize a common law claim for wrongful death prior to 1820 and that such a claim was  purely a creature created by statute.  Id. at 203.  The Court went on to hold that where a statutorily created cause of action like wrongful death is at issue, the right to jury trial does not attach, and the legislature has the authority to choose what remedies will be permitted.  Id.  As the Missouri General Assembly merely placed limits on the amount of damages recoverable under a statutorily created cause of action, therefore these limits on damages did not violate the right to a jury trial  as guaranteed by the Missouri Constitution.  Id.  at 204.  So after Sanders, it would seem the 2005 non-economic damages caps clearly apply to a wrongful death cause of action in Missouri.

A mere three months later, in analyzing the similar constitutional challenges to the 2005 medical malpractice caps, the Missouri Supreme Court in Watts ex. rel. Watts v. Lester E. Cox Med. Ctrs., 376 S.W.3d 633 (Mo.banc. 2012) turned §538.210 on it’s ear.  In Watts, the Court held that §538.210 was unconstitutional because it infringed on the jury’s constitutionally protected purpose of determining the amount of damages sustained by an injured party in a common law cause of action.  Id. at 634.  The Court noted that because a claim for medical malpractice was a common law cause of action in place at the time the Missouri Constitution was enacted in 1820, it was protected by Article I Section 22(a) of the Missouri Constitution which provides that “the right of trial by jury heretofore enjoyed shall remain inviolate.”  Id. at 635.   In applying that analysis to the facts of the Watts case, the Court held that as Missouri common law entitled a plaintiff to a jury trial on the issue of non-economic damages in a medical negligence action in 1820, the plaintiff in Watts had a state constitutional right to a jury trial on her all her damage claims for medical malpractice.  Id. at 639.  After Watts, caps on non-economic damages for common law medical negligence cases were no more.  Post Watts, Missouri was left in the curious position of having non-economic damages caps apply to cases in which the alleged medical negligence caused someone’s death, but the same damages would not be capped should the exact same medical negligence merely cause someone injury which they ultimately survived.

The Legislature Waves a Statutory Magic Wand Over Medical Malpractice Claims

In reaction to the Watts ruling, the Missouri Legislature almost immediately went back and began attempts to pass legislation that would reinstate the non-economic damages caps in Missouri as to all medical negligence claims whether they were claims for wrongful death or common law medical negligence.  After blocking damage limits for several years, the Democratic opposition decided to allow a new medical malpractice cap to go into effect after an agreement was reached to allow higher caps in some cases and the inclusion of a 1.7 percent yearly inflation increase on the limits in place.  See Missouri Medical Malpractice Caps Signed into Law, St. Louis Post Dispatch, May 8^th, 2015).  http://goo.gl/sDIJ39.  Governor Jay Nixon even signed the law stating that the “bipartisan legislation protects patients by making sure that significant financial restitution can be sought in cases of medical malpractice, while also helping to attract and retain health care providers in our state.”  Id.

The Missouri Legislature in an attempt to get around the Court’s ruling in Watts has enacted the following statute in which it attempts to abolish a claim for common law medical negligence and enact in its place a statutory cause of action for medical negligence in at attempt to allow them to apply non-economic damages caps to all claims for medical negligence.

Common Law in force—effect on statutes—failure to render health care services, no common law cause of action. 

Mo. Rev. Stat. § 1.010

1. The common law of England and all statutes and acts of parliament made prior to the fourth year of the reign of James the First, of a general nature, which are not local to that kingdom and not repugnant to or inconsistent with the Constitution of the United States, the constitution of this state, or the statute laws in force for the time being, are the rule of action and decision in this sates, any custom or usage to the contrary notwithstanding, but no act of the general assembly or law of this state shall be held to be invalid, or limited in its scope or effect by the courts of this state, for the reason that it is in derogation of, or in conflict with, the common law, or with such statutes or acts of parliament; but all acts of the general assembly, or laws, shall be liberally construed, so as to effectuate the true intent and meaning thereof.

2. The general assembly expressly excludes from this section the common law of England as it relates to claims arising out of the rendering of or failure to render health care services by a health care provider, it being the intent of the general assembly to replace those claims with statutory causes of action.

Now that medical negligence claims in Missouri have been turned into a statutory cause of action by the Missouri General Assembly, the new non-economic damages caps are applied as follows under §538.210 as it currently exists.

No common law cause of action—limitation on non-economic damages—jury not to be informed of limit—limit—punitive damages, requirements—annual increase on damages limit, amount—nonseverability clause. 

Mo. Rev. Stat. §538.210

1. A statutory cause of action for damages against a health care provider for personal injury of death arising out of the rendering of or failure to render health care services is hereby created, replacing any such common law cause of action.  The elements of such cause of action are that the health care provider failed to use that degree of skill and learning ordinarily used under the same or similar circumstances by members of the defendant’s profession and that such failure directly caused or contributed to cause the plaintiff’s injury or death.
2. (1) In any action against a health care provider for damages for personal injury arising out of the rendering of or the failure to render health care services, no plaintiff shall recover more than four hundred thousand dollars for non-economic damages[3] irrespective of the number of defendants.

(2) Notwithstanding the provisions of subdivision (1) of this subsection, in any action against a health care provider for damages for a catastrophic personal injury[4] arising out of the rendering or failure to render health care services, no plaintiff shall recovery more than seven hundred thousand dollars for noneconomic damages irrespective of the number of defendants.

(3) In any action against a health care provider for damages for death arising out of the rendering of or the failure to render health care services, no plaintiff shall recover more than seven hundred thousand dollars for non-economic damages irrespective of the number of defendants……

(8) The limitations on awards for noneconomic damages provided for in this section shall be increased by one and seven-tenths percent on an annual basis effective January first of each year. The current value of the limitation shall be calculated by the director of the department of insurance, financial institutions professional registration, who shall furnish that value to the secretary of state, who shall publish such value in the Missouri Register on the first business day following January first, but the value shall otherwise be exempt from the provisions of section 536.021.

(9) In any claim for damages under this chapter, and upon post-trial motion following a jury verdict with non-economic damages exceeding four hundred thousand dollars, the trial court shall determine whether the limitation in subsection 2 of this section shall apply based on the severity of the most severe injuries.

(10) If a court of competent jurisdiction enters a final judgment on the merits that is not subject to appeal and that declares any provision or part of either section 1.010…..or this section to be unconstitutional or unenforceable, then section 1.010…and this section, as amended by this act and in their entirety, are invalid and shall have no legal effect as of the date of such judgment, and this act, including its repealing clause, shall likewise be invalid and of no legal effect. In such event, the versions of sections 1.010 and this section that were in effect prior to the enactment of this act shall remain in force.

Damage itemization by trier of fact—excess non-economic damages to be reduced by court.

Mo. Rev. Stat §538.215

1. In any action against a health care provider for damages for personal injury or death arising out of the rendering of or the failure to render health care services, any damages found shall be itemized by the trier of fact as follows:
   • Past economic damages
   • Past non-economic damages
   • Future medical damages
   • Future economic damages, excluding future medical damages
   • Future non-economic damages

2. All future damages which are itemized by subsection 1 of this section shall be expressed by the trier of fact at present value.
3. Any award of non-economic damages in excess of the limit provided herein shall be reduced by the court to the maximum amount.

So it would appear that the legislature has attempted to do the following with this latest round of medical malpractice caps:

• Get around the Watts ruling, by waving a magical statutory wand and turning all medical negligence claims into statutory causes of action which the Legislature believes will be subject to the caps under the Sanders and possibly even the Watts This would make both common law negligence claims and wrongful death claims subject to the same caps for non-economic damages;
• Create two different caps for medical malpractice plaintiffs. A cap of  $700,000, for plaintiff suffering “catastrophic” injures such as loss of limbs, loss of use of limbs, brain injures, irreversible organ failure and a second cap for $4000,000 for all other injured plaintiffs;
• Allow the caps to increase 1.7% yearly to keep up with inflation.
• At the very least leave the situation that existed after the Watts ruling in place, as should the current statute be found to be unconstitutional or unenforceable, the law as it stood under the 2005 statutory caps, Watts, and Sanders is supposed to go back into effect.

Is This Kind of Legislative Magic Possible?

It seems unlikely that the legislatures attempt to take away a common law medical negligence cause of action will fly.  In Watts, the Court in partially overruling the holding in Adams, stated that the holding could not stand for the simple reason that a statutory limit on the state constitutional right to trial by jury amounts to an impermissible legislative alteration of the Constitution.  Watts, supra at 647.  The right to a trial by jury is a constitutional right where and when it applies, regardless of any statutory provision, and is beyond the reach of hostile litigation.  Id.  See also, State ex. rel. Diehl v. O’Malley, 95 S.W.3d 82, 85 (Mo. Banc 2003) (holding that there is a right to a jury trial in court actions for damages due to employment discrimination that cannot be legislated away). The Court further stated that it will not allow a statute to infringe on a constitutional right, and if the two are in conflict, then it is the statute rather than the constitution that must give way.  Id.   Statutes cannot limit constitutional rights by taking constitutional protections from a plaintiff seeking relief under existing causes of action.  Id. at 648.  The Court was concerned that should this be possible, it would make constitutional protections of only a theoretical value where they would only exist until limited by the whims of the legislature.  Id.  This would make constitutional rights “not rights at all, but merely privileges that could be withdrawn.” Id.

It does appear that the courts do recognize that the Missouri General Assembly does have the right to create new statutory causes of action and place limits on what recovery is allowed under those causes of action.  The fact that non-economic damages caps are allowed in purely statutorily created wrongful death cases under the Sanders case seems to support that theory.  However, even Sanders notes that while the General Assembly can negate causes of action or their remedies that did not exist prior to 1820 (emphasis added), the duty to prescribe the trial process and protect those rights to a jury trial as existed prior to 1820 (emphasis added) belongs to the judiciary.  Sanders, 364 S.W.3d at 205.  It seems clear from the Courts language in Watts and Sanders, that the legislature’s 2012 attempt to turn a common law cause of action into a statutory one, will most likely not pass constitutional muster.  Furthermore, as can be seen from the next section, it appears that the 2005 caps for wrongful death non-economic damages caps in Sanders is under judicial scrutiny again and it is not clear if the Sanders ruling will survive.  Should Sanders fall, the 2005 non-economic damages caps would be no more.

Equal Protection Enters the Fray, While the Right To A Jury Trial Might Be Down, But It’s Not Out

Recently in Ambers-Phillips v. SSM DePaul Health Ctr., 459 S.W.3d 901, 914 (Mo. 2015), the Court held that it will apply strict scrutiny under the Equal Protection Clause of the Missouri Constitution only to “fundamental rights” such as free speech, freedom of travel, the right to personal privacy, and other rights that the Court considers “objectively, deeply rooted in the nation’s history and tradition and implicit in the concept of ordered liberty, such that neither liberty, nor justice would exist if they were sacrificed.”  Id.  The Court noted that it had previously rejected the idea that the right to sue for medical malpractice fits within the narrow category of fundamental rights.  Id. The Court further stated that medical malpractice claimants are not considered a suspect class by the Court which also prevents a strict scrutiny analysis by the Court.  Id. at 917.  Instead, the Court in Ambers-Phillips applies a rational basis test to determine whether the statute at issue violated the plaintiff’s equal protection rights.[5]

The rational basis test states that equal protection is:

• offended only if the classification made rests on grounds wholly irrelevant to the achievement of the state’s objective; and
• the law will be upheld if it is “rationally related to a legitimate state interest.”

Id. at 918.

When the Court applied the rational basis test to the plaintiff’s claim it found that the statute that placed a 10 year time limit as to when plaintiff could file suit reflected a “reasonable balance struck by the legislature between the right of those injured by medical malpractice to discover their injuries and the concern that medical defendants should be free from worry about liability for past acts after a reasonable period of time.  Id. at 918.   Of interest, is that the Court did acknowledge that the right to bring a medical malpractice claim is one protected by the right to jury trial and cannot be “unreasonably foreclosed.”  Id. at 901.  The Court also noted that a statute that entirely eliminated the right to bring suit for medical malpractice would fail a rational basis test.  Id. at  918.

Currently before the Missouri Supreme Court, is the case of  Dodson v. Ferrara, SC 95151 (Mo. transferred on July, 21^st, 2015) https://goo.gl/PkU34o.  Dodson concerns a claim for wrongful death due to medical malpractice.  Id. at 2-3.  The jury on the trial court level awarded the plaintiffs 1.8 million dollars in past and future non-economic damages.  Id. at 3.  The trial court then granted the Defendants motion pursuant to §538.210 to apply the 2005 non-economic damages cap under §538.210 and reduce the award for non-economic damages to $350,000.  Id. at 4.  Plaintiff’s has appealed (among other issues involving error by the trial court) the application of the non-economic damages cap to the jury’s award.  Id.

The Court of Appeals in its opinion transferring the case to the Missouri Supreme Court noted the split created by the holdings in Sanders and Watts, in which non-economic damages caps are constitutional as to wrongful death but not for medical negligence claims.  Id. at 9.  The appeals court determined that it was bound by Sanders in this case, however it felt that all Plaintiffs’ constitutional arguments were legally plausible and should be addressed by a higher court.  Id.  Plaintiff’s are contending that Sanders was wrongly decided and that wrongful death was a common law cause of action causing the right to a jury trial under the Missouri Constitution to attach.  Id.  Plaintiffs further contend  the statutory cap on non-economic damages interferes with the judiciary’s performance of its constitutionally assigned power to render judgments in conformity with the jury’s verdict and to enforce judgments upon the verdict in violation of separation of powers. [6]  Id.  at 11.  The Court then conducted an analysis as to plaintiffs claim the conflicting rulings in Watts and Sanders violate both the federal and state equal protection guarantees because they treat similarly situated individuals – wrongful death and common law medical negligence plaintiffs – differently.  Id. at 11-12.  The Court held that while the legislature may pass laws that treat different groups differently, similarly situated persons cannot be treated differently without adequate justification.  Id. at 12-13.  As this particular issue was a question that has never been decided, the Court transferred the matter to the Missouri Supreme Court so that they could determine whether wrongful death and common law medical negligence plaintiffs are similarly situated and what level of scrutiny should apply in an equal protection analysis of this matter.[7]  Id. at 13.

In the briefs submitted to the Supreme Court  by counsel for the Dodson family, plaintiffs are making the bold assertion that Sanders was wrongly decided, because there is case law that indicates that  a wrongful death cause of action did exist at common law, therefore the right to a jury trial does attach under the Missouri Constitution.  (Br. of Pl.’[s] Resp’t Cross Appellant, 48, 57).  Plaintiff’s specifically cite in support of this assertion the Missouri case of James v. Christy, 18 Mo. 162, 164 (1853), decided two years prior to the creation of the wrongful death statute, in which a father was allowed to recover damages for the loss of services due to the death of his teenage son.  Id. at 57-60.  Plaintiff further points out that there are several other reasons for the court to decline to use the Sanders analysis.   Sanders dealt with the prior version of the non-economic damages cap rather than the 2005 version at issue in Dodson, Watts is the most previous decision on the matter in essence overruling Sanders, and that Sanders is based upon a proposition contained in Adams that has since been discarded in Watts, that as long as a jury simply issues a verdict on paper for non-economic damages even should a court later change that verdict by application of statute, the constitutional right to a jury trial has been satisfied.  Id. at 55.

Plaintiff then asserts that you cannot apply non-economic damages caps to medical malpractice cases in which the patient dies, while at the same time allowing for unlimited recover for non-economic damages when the patient lives as this violates the equal protection clause.  Id. at 61-2.   Plaintiff holds that analysis of the equal protection issue requires that the court inquire as to:

1. Whether there is a class of people who are “similarly situated” to a class of people that are treated differently
2. Whether that differentiation is adequately justified
   • And should that law disadvantage a suspect class or a fundamental right the court must apply strict scrutiny.
     • To satisfy strict scrutiny a governmental intrusion must be justified by a compelling state interest at stake.
   • And should it not involve a suspect class or a fundamental right the court will apply the rational basis test.
     • To satisfy rational-basis review legislation must only be found by the court to be rationally related to a legitimate governmental purpose.

Id. at 63-5.

Plaintiffs believe that because members these two groups of patients are persons who have been harmed by the negligence of a health care provider in Missouri and have prevailed in a medical malpractice action they are similarly situated.  Id. at 63.  Plaintiff feels that strict scrutiny should apply as the right to trial by jury is a fundamental constitutional issue.  Id. at  65.  However, Plaintiff is certain that §538.210 also fails under even a rational basis analysis as the split created by Watts and Sanders is a distinction that was not even contemplated by the Missouri Legislature when they wrote the statute.  Id. at 66.  It is clear that the specific  language of the statute is meant to apply to claims for damages as to “personal injury or death.” (emphasis added).    Id. at 66.  Furthermore, the split actually has the perverse effect of protecting doctors whose patients die by applying damages caps, while it punishes those doctors whose patients survive by having them face unlimited liability.  Id. at 67.  Finally, Plaintiffs state that the statutory cap on non-economic damages encroaches on the judicial power of additur and remittitur whereby the Court is empowered to determine if the jury’s assessment of damages is appropriate based upon the facts of each case therefore violating separation of powers as provided for by the Missouri Constitution.  Id. at 78.

Defendants brief in addition to addressing various trial errors, countered the Plaintiff’s claims and supports the constitutionality of §538.210.   Defendants first address the Plaintiff’s claim that the non-economic damages cap violates the right to trial by jury under the Missouri Constitution.  Defendants believe that as this case involves a claim of wrongful death, that the Sanders case applies and the application of the non-economic damages caps does not violate the right to a jury trial under the Missouri Constitution. (Second Br. of Def. [‘s] Appellant Cross-Resp’t, 29-38).  Defendants go on to cite over a hundred years of court rulings that stand for the proposition that a wrongful death cause of action did not exist at common law.  Id. at 42-8.  Defendants dismiss James v. Christy as a property rights case based upon the common idea held at the time that a father had a property right in the economic value of the services of his children which clearly would not even be subject to the non-economic damages cap at issue in Dodson.  Id. at 47.

Defendants then respond to the Plaintiffs claims that the non-economic damages caps deny equal protection to Plaintiff’s under the Missouri and United States Constitution.  Id. at 49-52.  Defendants believe that the Adams case although overruled on other grounds, still clearly stands for the proposition that medical malpractice claimants are not a suspect class nor is the right to pursue a claim for medical malpractice a fundamental right, therefore strict scrutiny does not apply.  Id. at 50.  The Court must apply a deferential rational basis review whereby it is only required that there is a showing of any facts that would reasonably be conceived to justify the statute and in doing this analysis the Court must defer to the Missouri General Assembly’s assertion that preservation of public health and the maintenance of generally affordable health care costs was the rational basis for non-economic damages caps.  Id. at 51.

Finally, Defendants dispute that separation of powers is even at issue in this case, pointing out that as the Court did not actually exercise its judicial power of remittitur in Dodson, therefore separation of powers arguments do not apply.  Id. at 62. Defendants then rely upon the Adams Courts dismissal of a separation of powers challenge dealing with the right to a jury trial in a wrongful death case.  Id. at 63. Defendant’s position in short is that wrongful death and medical malpractice are different, that the legislature always meant to treat them differently, and that this different treatment is okay because the Sanders case controls.

The Missouri Supreme Court has also heard oral arguments in the Dodson matter.  Dodson v. Ferrara, (Mo. Oral Argument, October 21^st, 2015),  http://goo.gl/EdFV6Y. During Oral Argument, the Court’s questioning to counsel seemed focused on two specific constitutional issues.  The Court asked counsel for both sides about whether or not past Missouri case law like James v. Christy case did indeed show that wrongful death was a common law cause of action and therefore the right to jury trial did apply to it.  The Court also seemed to indicate that it was concerned if there was indeed a substantial similarity between wrongful death and medical negligence cases that would require review of the medical malpractice caps.  Further discussion was encouraged regarding the idea that even if Sanders still controls, and strict scrutiny does not apply, that even under a simple rational basis test there is no rational basis to support the idea that merely the fact whether the injured party lived or died as a result of the medical negligence should act to cap damages.  In addition, the Court seemed to consider the argument that the Missouri Legislature at the time it enacted §538.210 was not actively working to draw a line causing wrongful death plaintiff’s to be treated differently than medical negligence plaintiffs with regard to non-economic damages caps.  As that idea could not have existed prior to the ruling in Watts,  they could not have had a rational basis for severing the two groups from each other.   All sides acknowledged that there was no known case law involving a history such as this in Missouri, where case law had caused a statute to be applied in such a different manner to two types of plaintiff’s that arose out of the same cause of injury.  The Court has not issued a final ruling with regard to the Dodson case as of the time this article was written.

What is clear is that with cases challenging medical malpractice caps winding their way up through the courts this issue is far from over.  Furthermore, as the political parties have taken opposing sides on this matter, it is clear the political make up of the Missouri Legislature, and the Governor’s Office as well as the make up of the Missouri Supreme Court when these cases come before it, will have great impact on where constitutional boundaries fall.  Geisman, Reform, supra, at 186.  With each case being decided by the Courts, there seems to come a new law from the Missouri General Assembly  attempting to make medical malpractice caps apply to people who are injured in Missouri due to negligent care.  If Sanders is overturned non-economic damages caps will be unconstitutional as to all medical negligence claims, and should the 2012 caps be challenged and also fail constitutional muster in the Courts and be overturned, Missouri will have no economic damages caps in place at all with regard to claims for medical negligence.  At least, of course, until the Missouri General Assembly meets again.

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[1]  The data does appear to show that since tort reform legislation has been in effect, the number of tort actions filed in Missouri courts has been reduced and distributed more equitably throughout the state.  Geisman, Reform, supra, at 184-85.  However, the data available to review leaves unanswered important questions about whether tort reform has only penalized the most severely injured plaintiffs and restrained other people with legitimate personal injury claims from pursuing them .  Id.  at 185.  There is also conflicting evidence as to whether or not these sorts of caps actually lower malpractice premium levels, keep doctors from leaving to practice in states with such caps, or lower health care costs overall.  Lawrence, Constitutionality, supra, at 631-5.  However, there is evidence that when caps are not in place, doctors are more likely to take extra precautions to deter error, rather than face what they perceive to be high malpractice liability.  Id. at 632.

[2] These challenges included provisions contained in the Missouri Constitution protecting the right to a jury trial, the right to equal rights and opportunities, the open courts provision, the right to due process, the application of special laws, the violation of privileges and immunities, the one subject requirement, separation of powers, and the constitutional directives for amending statutes.  Adams, supra. at 908.

[3] Mo. Rev. Stat. §538.205.8  (2015) defines “Noneconomic damages”, as damages arising from nonpecuniary harm including, without limitation, pain, suffering, mental anguish, inconvenience, physical impairment, disfigurement, loss of capacity to enjoy life, and loss of consortium but shall not include punitive damages.

[4] Mo. Rev. Stat. §538.205.1 (2015) defines “Catastrophic Personal Injury” as used in sections 538.210 to mean a physical injury resulting in a) quadriplegia defined as the permanent loss of functional use of all four limbs; b) Paraplegia defined as the permanent loss of functional use of two limbs; or c) loss of two or more limbs; d) an injury to the brain that results in permanent cognitive impairment resulting in the permanent inability to make independent decisions or engage in one or more of the following activities of daily living: eating, dressing, bathing, toileting transferring, and walking; e) An injury that causes irreversible failure of one or more major organ systems; or f) Vision loss such that the patients central visual acuity is no more than twenty/two-hundred in the better eye with the best correction or whose field of vision in the better eye is restricted to a degree that its widest diameter subtends an angle no greater than twenty degrees.

[5]  The statute at issue here was a statute of repose that applied a 10 year time limit as to when the plaintiffs could file suit for foreign objects that were left in her abdomen during a surgery.  Ambers-Phillips, 459 S.W.3d at 902-3.

[6] MO. CONST. art I, §22(a)  requires that “the right of trial by jury as heretofore enjoyed shall remain inviolate….

1. CONST. art II § 1 states, “The powers of government shall be divided into three distinct departments – the legislative and judicial – each of which shall be confided to a separate magistracy, and no person, or collection of persons, charged with the exercise of powers properly belonging to one of those departments, shall exercise any power properly belonging to either of the others, except in the instances in this constitution expressly direct or permitted.

[7] It should be noted that whenever the Court must interpret and apply a statute to a given set of facts it concerns a question of law and as such the appropriate standard of review is de novo, giving no deference to the trial courts judgment.  Comens v. SSM St. Charles Clinic Medical Group, Inc. 335 S.W.3d 76, 80 (Mo. App. E.D. 2011).