Missouri State Senator Bob Dixon, from the 30th District (Greene County / Springfield) announced on February 4, 2013 that he will be offering a bill to increase the standard of evidence required in medical malpractice lawsuits awarding non-economic damages. Senator Dixon claims this would be in the spirit of compromise given the recent ruling by the Missouri Supreme Court overturning the medical malpractice damages cap after finding it to be unconstitutional.
At the Senate Committee on Judiciary, Criminal and Civil and Jurisprudence, Dixon, a R-Springfield, said his proposed bill, Senate Bill 64, would change the standard of evidence from a “preponderance of the evidence” to “clear and convincing evidence.” The latter standard is one step below “beyond a reasonable doubt,” which is the standard of evidence used in criminal trials.
“Preponderance of the evidence” requires only that the plaintiff prove their case more likely happened than not. “Beyond a reasonable doubt” requires the prosecution to prove a defendant committed the charged crimes to a point that leaves jurors “firmly convinced” beyond any reasonable doubt. “Clear and convincing” is somewhere in between, but quite a bit higher than “preponderance of the evidence.
This past summer, a $350,000 cap on noneconomic damages in medical malpractice cases was struck down by the Missouri Supreme Court as being unconstitutional. The court found the cap violates a plaintiff’s right to a jury trial. The court highlighted that by restricting the jury’s right to award damages that it sees fit denies those Missouri residents their right to a full jury trial However, Dixon claims that his bill is an attempt to find a compromise position on the issue.
The hearing on Dixon’s proposed bill began about 9 p.m. because of late action on the Missouri Senate floor. Steve Garner, President of the Missouri Association of Trial Attorneys (MATA), spoke in strong opposition to the bill by focusing attention on the fact that “when we’re talking about noneconomic losses, we’re talking about what makes people human.”
Garner is quite correct. Noneconomic damages are a fundamental recognition that there is more than just financial harm done to people when they suffer from traumatic experiences such as medical malpractice. While out-of-pocket expenses can begin to make a person whole again, the pain of their experiences, breach of trust, and emotional distress cannot be compensated by just giving them back the money they lost. Noneconomic damages highlight this fact.
Furthermore, Garner, an experienced and distinguished trial attorney, said that juries will interpret the higher standard to mean plaintiffs need to use document-based evidence. He said non-economic damages, such as pain and suffering, are hard to prove with objective evidence. A majority of the time such proof comes from testimony by plaintiffs and their loved ones, while it can also come from experts, such evidence is hard to get down on paper exactly the full extent of these damages. Instead, under this proposed bill, juries could find it hard to see testimony as being sufficient evidence.
Once again, as the Missouri Supreme Court addressed with the cap, Missouri residents who fall victim to medical malpractice may once again find it hard to make themselves whole again and seek justice if this bill becomes law.
Grant C. Boyd
Saint Louis University School of Law
J.D. Candidate 2014