While we’ve seen many states lose caps on non-economic damages to judicial review in recent years, Missouri is now one step closer to reinstating them. From 2005 to 2012 Missouri had a cap of $350,000 on non-economic damages (i.e. pain and suffering) in medical malpractice cases. However, in 2012 that cap was deemed to be in violation of the Missouri constitution by the Missouri State Supreme Court.
A new bill, passed by the Missouri State Senate in a voice vote on March 12 and confirmed by a roll call vote yesterday, aims to put in place new caps that are in accordance with the court’s ruling. The compromise bill was able to gain Republican and Democrat support and was passed by a vote of 28-2 with 4 abstaining.
The bill, SB 239, does two primary things. First, in lieu of deference to the common law tradition it establishes a specific statutory cause of action for malpractice in Missouri. In other words, it defines medical malpractice technically and specifically under Missouri law. The definition is fairly simple and straightforward stating that a cause of action for malpractice exists when “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.” As mentioned, this is a fairly simple and obvious definition, but proponents of the bill, like Eric Burlison, who is sponsoring it in the House, believe that by establishing a cause of action the caps they put in place will not be liable to judicial overthrow.
The second thing the bill does is establish the damage caps themselves. And yes, that is caps, plural. The Senate bill, as a compromise bill, is not a simple reinstatement of the former $350,000 flat cap. Instead it provides for a $400,000 basic cap on non-economic damages, and a $700,000 cap in cases of catastrophic injury or wrongful death. Catastrophic injury is defined by the measure as quadriplegia, paraplegia, injury resulting in the loss of two or more limbs, brain injury resulting in permanent incompetence or inability to perform routine tasks (i.e. eating, dressing, etc.), irreversible failure of a major organ system, or irreparable legal blindness. In addition to introducing this tiered system the bill also provides for the caps to increase by 1.7% each year on January 1.
Proponents of the bill focus on stability and certainty, noting that these kinds of caps mitigate a completely open-ended and unlimited potential risk level created when there are no limits on the monetary value a jury or judge can assign such intangibles as pain and suffering.
Sen. Dan Brown, one of the bill’s sponsors said, “We had an opportunity to put some certainty in the marketplace so doctors and actuaries can put a number on it. Right now it’s open-ended,” and that “I think it’s important that we get something done that gets some certainty.”
In addition to the peace of mind offered to doctors and actuaries by having limits on these damages, other senate supporters argued that the bill would be good for the state’s economy and even for the average Missourian as the dampening effect it would have on malpractice premium increases would mean lower costs of healthcare for patients in the long run.
Majority Floor Leader Ron Richard, R-Joplin said recently in discussion about the bill “Doctors need certainty going forward… Ultimately, changes in the law will attract more insurance providers to offer competitive liability insurance to doctors and care providers in Missouri.”
Similarly Senate Leader Tom Dempsey, R-St. Charles, noting the bill’s potential to attract doctors to the state said, “By reinstating caps on non-economic damages in medical malpractice lawsuits, we will reduce incentives for these frivolous lawsuits… Overall, it means more accessible health care for all Missourians.”
The bill does have its detractors however. Rep. Jon Carpenter, D-Kansas City has pointed out that the number of malpractice filings has not gone up since the caps were removed in 2012. Proponents point out that two years isn’t long enough to see the effects but that waiting until we do is a bad option for everyone.
Sheila Solon, R-Blue Springs argues that the bill is simply unjust because it puts a price on the value of human life and quality of life. “I believe in the sanctity of human life,” Solon said. “I believe you cannot place a price tag on the life of anyone.” Rep. Solon also noted that she trusted juries to make the right decisions in these cases. It is hard not to note however, that putting a price tag on life (or quality of life) is precisely what juries in these cases are called on to do.
The bill still has to make its way through the House which has already approved their own bill that seeks to simply reinstate the flat, non-indexed $350,000 caps across the board that were in place from 2005-2012. Whether they will accept the Senate’s compromise bill is yet to be seen, but we’ll keep you posted as things develop.