The Law Office of Kurt H King

January 8, 2013

Missouri’s Position on Statutory Damage Caps in Wrongful Death Cases Involving Medical Malpractice?

Years ago, Missouri lawmakers did an end run to block juries from setting the final amount of non-economic damages due a  wrongfully injured person as a result of improper health care.  To do so, they passed what is now Missouri statute 538.210, which lets the jury determine fault and the amount of damages, but then requires the judge (unbeknownst to the jury) to cap the amount of non-economic damages at $350,000 as of this post.

This fix lasted until July 31, 2012, the date of the Missouri Supreme Court’s opinion SC91867 in Watts v. Lester E. Cox Medical Center, now found at 376 S.W.3d 633.  In that case, Missouri’s Supreme Court struck down damage caps  in a medical malpractice case involving a child born brain damaged, but who survived to need care for life.

In deciding Watts, the high court  found that the Missouri Constitution first adopted in 1820 mandates the right to jury trial as it previously existed at common law.  Since no such damage caps existed then in common law, the damage cap statute first implemented over a century later unconstitutionally curtailed the right to trial by jury in Missouri.  Therefore, the damage cap statute violates the Missouri Constitution and is consequently a nullity as to such common law causes of action.   Good-bye damage caps in medical practice cases?–not quite.

The question remains after Watts: do the caps still apply  where substandard care from a health care provider results in the patient’s death and suit is brought for damages as a wrongful death claim?  On this point, we find the same Missouri Supreme Court deciding in April 2012 (just three months before Watts) that such damage caps are alive and well–and lawfully applied  by the trial judge to reduce the amount of non-economic damages awarded by the jury in a wrongful death case where improper health care caused the patient’s death.  See Sanders v. Ahmed, at 364 S.W.3d 195 (see page 204).

This begs the question, why does the cap apply when the patient dies but not when he or she lives?  The rationale given in Sanders is that wrongful death actions did not exist in common law adopted by the State of Missouri through its Constitution of 1820.  Rather, the Missouri legislature later statutorily established wrongful death as a cause of action in Missouri, and that not until about 1855 according to the court in Sanders.   Thus, it seems that the high court holds that the right to an unrestricted jury verdict of damages due the plaintiff follows only if the cause of action existed in the common law of this state as of 1820.  As wrongful death actions did not then exist in common law, being cast by state statute years later,  the constitution is now read to permit application of damage caps in wrongful death cases based on medical negligence.

One could and should argue that this uneven and unfair application of damage caps runs afoul of the Equal Protection clauses in the Missouri and United States Constitutions and that question and others like it  may well fuel future appeals of such wrongful death cases to the Missouri Supreme Court.

Would it be too simple to remove damage caps entirely where the parties have a right to a jury trial?  Might we better focus on leaving the common law right to jury trial as free of damage caps and the like as it was originally in 1820 here in Missouri and grant all causes of action later adopted (that are entitled to jury trial) the same full right to trial by jury?  Why limit non-economic damages for a patient that dies but not for one who survives improper health care?  Is there really a rational basis for a distinction with that impact?  Or is this just man-made logic?

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

Personal Injury, Workers’ Compensation, Trial and Appellate Practice

http://www.kurthking.com

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