The Law Office of Kurt H King

July 12, 2013

Can Hospital Reject Insurance Payment and Put Lien on Patient’s Personal Injury Case for Full Amount Charged by Hospital?

Filed under: Litigation,Missouri Personal Injury Law — kurthking @ 4:55 pm
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The case of Iretta Morgan v. Saint Luke’s Hospital of Kansas City is the first in Missouri to address whether a hospital may reject payment of a claim by a health insurer in order to put a lien on the patient’s lawsuit for the full amount of the hospital’s charges.

The hospital in this case treated Ms. Morgan’s injuries from a motor vehicle accident before billing her health insurance company which then paid the hospital bill after applying the appropriate discount.  The new twist–after the hospital received payment from the insurer, St. Luke’s returned the check and put a lien on Ms. Morgan’s personal injury claim against the other driver–for the full amount of its bill without the discount given the health insurance company.  This effort by the hospital to increase its revenue caused Ms. Morgan to file a class action lawsuit against the hospital  in the Circuit Court of Jackson County.  Alas, she lost in that court as the judge granted the hospital the rare prize of judgment on the pleadings based on the rationale that the Missouri’s hospital lien statute (430.230) affords hospitals the right to file such a lien “without limitation.”

However, the court of appeals disagreed and reversed and remanded, enabling Ms. Morgan to continue her case against the hospital for violation of the Missouri Merchandising Practices Act (think attorneys fees for prevailing plaintiff), tortious interference with contract/business relationship, and unjust enrichment.  The appellate court’s opinion (WD75098, filed June 28, 2013) discusses the split on this issue in other states, noting that “most courts generally hold that a healthcare provider covered under the hospital lien statute may not assert a lien against the claim of a patient with health insurance for an amount beyond what the contract between the provider and the health insurance company dictates.”

In reversing against the hospital, the Western District found first and foremost that while the hospital’s right to assert a lien on the injured patient’s claim for personal injury is not limited by  the language of Missouri’s hospital lien law (section 430.230), “it is axiomatic that ‘a lien cannot exist in the absence of [a] debt, the payment of which it secures.'”  [Citations omitted.]  In other words, the health insurance company had paid the hospital the entire discounted amount due, leaving no debt on which to place a lien.

After all, why should a hospital make more off one patient who has a personal injury claim, that from a patient that does not?

And so this aggressive lien play by the hospital backfires as the hospital has now returned its payment from the health insurance company, and embroiled itself in defending a class action where it risks having to pay the plaintiffs’ attorney fees and more.

Kurt H. King

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

816.781.6000

Personal Injury, Workers’ Compensation

Chapter 7 Bankruptcy, Family Law, General Matters

www.kurthking.com

May 22, 2013

The General Rule on Maintenance in Missouri

Filed under: Divorce,Family Law,Litigation,Support — kurthking @ 9:38 pm
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The recent May 7, 2013, opinion ED98727 out of the Eastern District of the Missouri Court of Appeals in In re the Marriage of John P. McMillian and Susan I. McMillian, follows established Missouri law on  how maintenance (formerly called alimony) is to be awarded by Missouri courts in divorce cases.

Here the husband enjoyed a substantial income while the wife’s income had diminished with no real signs of improvement in the future.  Not having settled the issue of maintenance, the parties tried the case to the court in a bench trial.  The trial judge awarded maintenance but limited it to three years and declared it to be non-modifiable.

The Eastern District reversed as it found no or insufficient proof that the wife’s income would increase by three years time.  Accordingly, the court of appeals ordered that such maintenance shall be paid indefinitely but that the maintenance shall be modifiable so that the husband may move to modify the maintenance award should the financial circumstances of the parties change significantly in the future.

This case illustrates Missouri case law holding that to limit the duration of maintenance there must be adequate proof that the financial situation of the parties will definitely change at a certain point in the future.   Lacking such proof, trial courts are not to set a time limit, unless the parties agree on one.

So if you want to limit the time that you will have to pay maintenance, try to reach an agreement which may well mean that you will have to sweeten the pot by offering your spouse more maintenance than the judge may order so that he/she will agree to a cut-off date.  This is a dangerous issue to take to trial so try to settle it.

 

Kurt H. King

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

816.781.6000

Family Law–Divorce, Modifications, Child Custody, Support & Visitation, Paternity

Personal Injury, Workers’ Compensation, Chapter 7 Bankruptcy

New Opinion Affirming Award of Punitive Damages in Delacroix v. Doncasters

Filed under: Litigation,Missouri Personal Injury Law — kurthking @ 9:15 pm
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As of May 7, 2013, the Eastern District of the Missouri Court of Appeals handed down a revised opinion in appeal ED97375, a case captioned Delacroix v. Doncasters which addressed the level of proof necessary for an award of punitive damages in an aircraft product liability case in Missouri.

This court’s first slip opinion issued January 2013 in appeal ED97375 affirmed the trial court’s decision to disavow the jury’s award of $28 million in punitive damages to the plaintiffs who were killed in the crash of the sky diving plane fitted with defective blades sold on the market by a company later purchased by defendant Doncasters.

But the court’s second opinion dated May 7, 2013, turned about to fully uphold the jury’s award of punitive damages.

In reaching its final conclusion that the plaintiffs did in fact sufficiently prove their case for an award of punitive damages, the court stated that plaintiffs in a strict liability products case must present clear and convincing evidence that the defendant placed in commerce an unreasonably dangerous product with actual knowledge of the defect, and that by doing so acted with conscious indifference or reckless disregard for the safety of others.  The court defines “clear and convincing” as being evidence sufficient to permit a reasonable juror to conclude with convincing clarity the truth of the proposition sought to be proven.  These standards and definitions may seem a bit circular and hazy but it seems that the court “knows one when it sees it.”

Here the evidence presented by the plaintiffs to justify punitive damages included expert testimony based on documents produced by the defendant that the blades never passed the FAA tests for durability of the engine prop blades that failed to cause the crash that killed the sky divers, and that the manufacturer knew of the failure but nevertheless made and sold the blades anyway–a mind-boggling mistake.  The blades failed two durability tests and never passed the test in the engine for which they were manufactured.  This the manufacturer knew before the sale of the blades involved in this case.  Not only did the original manufacturer know the blades failed, but so did defendant Doncasters, the purchaser of the manufacturing company.  Despite admitted knowledge of the sale of defective blades, defendant Doncasters never recalled or issued warnings to purchasers of the defective blades.

While a dissenter  wrote against the decision on this appeal, the reasoning of the block of justices upholding the award of punitive damages to plaintiffs rests on solid ground.

Kurt H. King

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

816.781.6000

http://www.kurthking.com

Litigation–Personal Injury, Workers’ Compensation, and General Matters

April 15, 2013

Expunging A Criminal Arrest Record Under Missouri Statute 610.122

Filed under: Litigation,Uncategorized — kurthking @ 3:49 pm
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Here are the five elements that must be proven in order to expunge a criminal arrest record under Missouri statute 610.122, as to situations where the arrest was based on false information and the following conditions exist:

1.  No probable cause that the defendant did the crime;

2.  No charges will be pursued;

3.  Defendant has no misdemeanor or felony convictions;

4.  Defendant did not receive a Suspended Imposition of Sentence (SIS;

5.  No related civil action.

See Schollmeyer v. State of Missouri, (Mo. Ct. App. E.D. Slip Op. 98614, filed April 9, 2013), where the Eastern District of the court of appeals reversed the trial court’s expungement of the arrest record because: arrest based upon information admitted by defendant to be true; probable cause for arrest existed; criminal charges filed; and, defendant received a SIS.  In sum, plenty of good cause for reversal of the trial court.

Expungement of an arrest record is just not as easy as often thought.

Note that there are various minor exceptions to the above to permit expungement in limited circumstances.  Section 610.140.2 lists three categories of exceptions which include convictions of  some crimes–passing bad checks, use of fraudulent credit/debit devices, specific property crimes, disturbing the peace.  And other exceptions: Missouri statutes section 311.326 permits expungement of lesser driving under the influence records;  217.360 reversals of paternity orders . . . .

Kurt H. King

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

816.781.6000

General Litigation and Practice, Personal Injury and Workers’ Compensation

Chapter 7 Bankruptcy, Family Law including Divorce, Paternity, and Modifications of Child Custody, Support, & Visitation

http://www.kurthking.com

February 1, 2013

Protection of Customer Contact Information Requires a Non-Compete Agreement

Filed under: Litigation — kurthking @ 5:38 pm
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A recent case affirms Missouri employment law in holding:

1)  An ex-employee has the right to compete with the ex-employer if there is not a valid covenant-not-to-compete (CNC) agreement;

2)  Customer contacts and customer lists are not protected as a trade secret or confidential relationship–a valid CNC is required.

The Southern District of the Missouri Court of Appeals so held in Central Trust & Investment v. Kennedy, (opinion filed 01.24.2013), following the Missouri Supreme Court’s lead in Western Blueprint v. Roberts, 367 S.W.3d 7, 18 (Mo. banc 2012).

The CNC in this case having been vitiated by sale of the company to Central Trust & Investments, there was no valid CNC in effect.  Therefore the employee was free to use such customer information and lists from his work at the company before its sale.

 

Kurt H. King

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

816.781.6000

General Litigation, Personal Injury, Workers’ Compensation, Bankruptcy, Family Law

http://www.kurthking.com

January 31, 2013

The “State” of the Insolvent Second Injury Fund in Missouri–Skirvin v. Treasurer of the State of Missouri

Filed under: Litigation,Missouri Workers Compensation — kurthking @ 9:33 pm
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Missouri’s Second Injury Fund pays part of the disability of injured workers who suffer re-injury.  The theory being that otherwise employers would be far less likely to hire workers that have already been hurt.  Since employers presumably pay less on work comp claims than they would if injured workers could sue for their injuries in circuit courts with jury trials, punitive damages and the whole nine yards, lawmakers have saddled employers with the cost of funding the Fund so it can pay the “load factor” part of permanent partial work comp awards, as well as on permanent total disability awards.

A few years ago, in an effort to reduce the costs of work comp insurance for Missouri businesses, lawmakers capped the “surcharge” at 3%–thus the most a business would have to pay into the State for the Fund each year would be no more than 3% of the total amount of its net work comp insurance premiums.  This effort to appease business backfired as that amount of surcharge falls far short of an adequate supply of money to the Fund for payment of the continuous flow of work comp awards against the Fund.

By and large, due to lack of funding, the Fund has not paid any Permanent Total Disability awards dated after March 6, 2011.  There are said to be at least sixty cases on file in courts throughout Missouri seeking orders that the Fund pay the injured worker the amount awarded that worker by the Division of Workers Compensation.  One of those cases recently reached the Western District of the Missouri Court Appeals, where it was decided by Judges Ahuja, Howard, and Martin.  The case is Skirvin v. Treasurer of the State of Missouri, WD75541 (opinion filed 01.22.2013).  At the trial which led to this appeal, Skirvin won an order (on a writ of mandamus) that the Fund pay the money awarded by the Division of Workers Compensation on his permanent total disability claim where the “last” part of the disability combined with  disability from previous injuries to cause the employee to be totally disabled.  The last employer picks up the tab for the “last” disability but the Fund is charged with payment for the remainder of the workers’ disability.

Having lost  at trial, the Fund appealed to the Western District.  In doing so, the Fund admitted that it is insolvent–bankrupt–and so it stopped paying permanent total injury awards as of March 6, 2011.  Evidence at trial showed that the Fund then owed $21 million but had only $6.5 million with which to pay.   Thus, the Fund was upside down $15 million.   The Fund also testified to annual income of $43 million, of which $40 million was paid out within six months, leaving only $3 million for the remaining six months.  This has been going on for nearly two years now and the hole yawns blacker and deeper.

No way the Fund can pay the past due awards pro rata as there are significant differences in how the claims affect employee Social Security, the number and amount of claims constantly fluctuates, and it simply would not be fair.  The alternate, to pay on a “first come, first serve” basis, would quickly break the bank.  Missouri’s lawmakers should have raised the legal limit on the surcharge or provided additional funding but they have not.  The economic times of late have not led to surpluses, and who wants to vote for representatives who pass laws which increase your work comp costs and cut your thin profits?

What the court of appeals decided in the main opinion by Judge Martin is that the trial court erred in ordering the Fund to pay Skirvin as the Fund lacks the money to pay him and the other claims like his.  Skirvin did not request a pro rata payment of his and similar claims and that would be nearly impossible to accomplish.  But while the court of appeals could not help Skirvin, they could send his case to the Missouri Supreme Court and so they ordered it transferred.  If that high court hears this case, it may do so expeditiously.  Meanwhile, Missouri lawmakers may realize that they must act now or the supreme court may fix things in a way that they do not like.

Judge Ahuja agreed with the transfer to the supreme court, although he would simply have reversed the trial court for the reasons that, (1) the Fund is insolvent and cannot pay all the judgments outstanding against it, and (2) Skirvin did not request  a pro rata payment.  [Maybe a request to put the Fund into receivorship is another option.]

Finally, Judge Howard in his dissent makes several good points, including that the Fund is just an account of the State of Missouri, and the State has the money or can raise it to pay the outstanding claims against the Fund.  The State also has full power to increase the surcharge or otherwise fund the Fund so that it has sufficient money to pay its debts.  So, affirm the trial court and uphold Skirvin’s order that the Fund/State of Missouri pay him what it owes him by law.

Embarrassing for a STATE to say to an injured employee, in effect–

“Hey, here is your work comp judgment and by the way the Fund is not going to pay you.  Sorry you may starve.  Hope you find a good homeless shelter or maybe your spouse can float all the bills by herself.”  Does the state let tax debt ride indefinitely when a taxpayer says, “Can’t pay you, I’m almost clear broke?”

Perhaps the Missouri Supreme Court will decide this case and turn up  the heat on our lawmakers who knew, or should have known, they were drowning the Fund and injured employees when they capped the surcharge at 3%.

Kurt H. King

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

816.781.6000

Workers’ Compensation, Personal Injury, Bankruptcy, General Litigation and other matters

http://www.kurthking.com

January 29, 2013

Pre-impact Terror and Actual Knowledge for Punitive Damages in Aircraft Product Liability Case

Filed under: Litigation,Missouri Personal Injury Law,Uncategorized — kurthking @ 6:09 pm
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The Eastern District of the Missouri Court of Appeals recently issued its opinion ED97375 in Delacroix v. Doncasters, Inc. (01.15.2013), an airplane product liability case.  That court affirmed $4 million of compensatory damages as to each of the five persons killed in the 07.29.2006 crash of a sky-diving plane, but denied plaintiffs $28 million of punitive damages also awarded by the Franklin County jury in a trial bifurcated as a sanction against Doncasters,Inc., for late production of 8000 documents to plaintiffs’ counsel.

Besides the bifurcation sanction, this case holds interest in at least three areas:

1.  Court agrees that plaintiffs are entitled to recover for pre-impact terror during the 52 seconds that it took the plane to hurtle to ground after a defectively coated compression turbine blade failed and destroyed the right engine.  Simply put, the court found the passengers killed by the crash began to suffer injury–terror, distress–when the engine failed and before the physical impact brought death.  Therefore, no error in submitting the case to the jury using MAI 5.01 with language allowing award of damages for the damages that the deceased persons suffered between the time of injury and death.

2.  Plaintiffs sought to offer evidence of twenty-six similar blade failures.  However, the court excluded all, finding cause of blade failure in those incidents did not match that of the blade at issue in this case–substandard coatings which allowed corrosion of the also substandard base metal of the blade.

3.  The court of appeals took away the jury’s $28 million award of punitive damages, finding the testimony of plaintiffs’ experts failed to show the required actual knowledge by the defendant of the defective condition.  Plaintiffs’ experts testified that the company knew that the blades failed to pass–twice–FAA 150 hour endurance tests  in the subject engine type and therefore knew the blades were defective prior to 1986.  Indeed, the company’s representative testified that defendant Doncasters, Inc., knew the blades were defective but claimed to have only first so learned in 2001, some time after Doncasters bought the company that sold these defective blades in 1996.   Why were the blades not recalled and/or warnings sent out by Doncasters after purportedly discovering defects in 2001?

In any event, the dissenting judge opines that plaintiffs’ expert testimony certainly satisfied the burden of proof on actual knowledge of the company that its blades were defective due to inferior anti-corrosion coating and substandard base metals which never passed FAA endurance tests.  Indeed, the jury surely thought that Doncasters’ fault so serious as to be deserving of $28 million in punitive damages to punish it and deter others from such reckless disregard for the safety of others.   A strong point of the dissent is that the jury is free to disbelieve Doncasters’ claim it first learned of the defective condition in 2001, and plaintiffs’ experts testified to defendant’s actual knowledge as being prior to 1986.  [Keep in mind, that the purchaser of the stock of a company, as Doncasters presumably did in this case, generally renders the purchaser liable for the liabilities of the company it so purchased.]

Interesting case handled for the plaintiffs by good lawyers–Gary and Anita Robb of Kansas City.

Kurt H. King

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

816.781.6000

Personal Injury, Workers’ Compensation, General Litigation

http://www.kurthking.com

January 24, 2013

Attorney’s Lien Trumps Medicaid Reimbursement Lien Under Missouri Workers’ Compensation Law

Filed under: Litigation,Missouri Workers Compensation — kurthking @ 11:05 pm
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In Lake v. Ronald Levy, Director of Missouri Department of Social Services, WD74306 (filed 01.15.2013), the Western District held the Medicaid reimbursement lien asserted by the Department of Social Services inferior to the attorney’s lien of counsel who brought the workers’ compensation claim.  The court of appeals finds this to be fair since only by the efforts of the injured employee’s attorney did it come to pass that there was any money to reimburse the state.  To have held the Medicaid lien superior would (at least in this case where the medical expenses part of the settlement monies paid by the employer/insurer was no more than the money for the employee’s medical expenses) leave counsel with little or no incentive to recover such medical expenses merely to benefit the state with reimbursement for Medicaid medical payments for treatment of the injured employee.  From counsel’s perspective, if you aren’t going to get paid, why do the work?

Here the employee’s counsel settled the work comp claim and then filed suit in Missouri circuit court seeking in equity to enforce his attorney’s lien against the disputed medical expense portion of the workers’ compensation settlement.  Ultimately, the trial judge ruled in favor of Social Services on motions for judgment on the pleadings (the question before the court being strictly one of law), giving the medicaid reimbursement lien priority over the attorney’s lien provided for in Missouri statute 484.130.  This ruling denied the attorney’s claim in equity for a 25% fee of the $45,001 medical expense portion of the work comp settlement.  Being so denied fees of $11,250, the lawyer for the injured employee did what lawyers do and appealed to the court of appeals.

On appeal to the Western District of that court, the parties both focused on subsection 7 of section 287.266 of Missouri Workers’ Compensation Law.  That subsection reads:

“This debt due the state shall be subordinate only to the fee rights of the injured employee’s attorney pursuant to this chapter, and the state shall not be required to pay any portion of the fees or costs incurred by the employee or the employer.”

The attorney argued that the first portion of subsection 7 clearly gives his attorney’s lien  priority over the state’s medicaid reimbursement lien.  In straight-forward fashion, the court of appeals agreed, noting that without priority the attorney would have no reason to recover medical expenses in cases such as this one where no money would be left for the attorney as the medical reimbursement lien met or exceeded the amount of the medical expense portion of the work comp settlement.  The state, however, argued  that giving the attorney’s lien priority constitutes a payment of fees or costs in violation of the last part of subsection 7.  Nevertheless, the court of appeals ruled for in favor of the attorney as the money due the attorney on the lien for his fee is his money and not the state’s money.  Therefore, the state is not “paying” the attorney’s fees. Victory for the attorney!

This case puzzles in that the undersigned’s experiences with Medicaid in personal injury cases is that its third-party subrogation office will consider and agree to a pro-rata reduction of the amount of its lien and will reduce its share a further percentage to factor in the attorney’s efforts in pressing forward the claim or lawsuit that resulted in recovery of funds from which Medicaid is reimbursed.   Perhaps a harder stance was taken by the state in this case in hopes that the above language of subsection 7 would afford the state more leverage and reason not to reduce medicaid reimbursement liens by an amount for the claimant’s  attorney–at least in workers’ compensation cases.

Kurt H. King

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

816.781.6000

Missouri Workers’ Compensation Claims, Personal Injury, General Litigation

http://www.kurthking.com

January 16, 2013

Discharge in Bankruptcy Of Debts Ordered Paid in a Divorce or Legal Separation Setting

Filed under: Divorce,Family Law,Litigation — kurthking @ 11:03 pm
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While no longer “breaking news,” cases continue to proceed to court over what happens to an ex-spouse who fails to pay debt he/she was ordered or agreed to pay in connection with a divorce or legal separation proceeding under Missouri law.

One such recent case is Henderson v. Henderson, No. ED98357 (Eastern District Slip Opinion Filed December 26, 2012).  There the former wife filed a motion to hold her ex-husband in contempt for failure to pay a line of credit debt that he agreed to pay in a dissolution settlement agreement and the resulting court judgment of dissolution of marriage.   Instead of paying off the debt as ordered, this man filed Chapter 7 bankruptcy and was granted a discharge of that debt–meaning that the creditor could no longer collect against the ex-husband.

But the creditor could proceed against the former wife to the extent that she was jointly obligated on the debt.  The opinion indicated that the line of credit creditor was attempting to collect from wife but apparently had not yet been successful in those attempts.  There is no mention of the creditor having sued or obtained a judgment against the former wife.  However, the former wife requested an award for attorney fees and costs in her case to hold her ex-husband in contempt of court.

At the trial, the judge  found that the ex-husband was not in contempt for non-payment of the line of credit indebtedness because, “the balance due US Bank is not owed by [Husband] to [Wife] or to US Bank.”  (See page 4.)  Nor did the trial court award attorneys fees and costs on the former wife’s claim for such in the contempt case.  On the other hand, the trial court did order the ex-husband to pay wife [not US Bank]  $9,600 which turned out to approximate roughly half of the balance of the line of credit discharged in the ex-husband’s Chapter 7 bankruptcy.

Both parties appealed the trial court’s decision, the ex-husband complaining that he should not have to pay former wife $9,600 when she never paid a dime of the balance to US Bank on the line of credit.  And, wife of course charged the trial court with error in not holding the ex-husband in contempt to force him to pay her all the line of credit debt and her attorneys fees and costs incurred in the contempt case.

On appeal, the Eastern District easily found in favor of  the former wife in holding the entire Line of Credit is nondischargeable pursuant to 11 USC section 523 (a)(15) which provides that a Chapter 7 bankruptcy discharge–

“[D]oes not discharge an individual debtor from any debt–

. . .

(5) for a domestic support obligation;

. . . [or]

(15) to a spouse, former spouse, or child of the debtor and not of the kind described in paragraph (5) that is incurred by the debtor in the course of a divorce or separation

or in connection with a separation agreement, divorce decree or other order of a court of record, or a determination made in accordance with State or territorial law by a

governmental unit.”

And this is apparently true even though the ex-spouse fails to file any objection to discharge of the marital debt in the bankruptcy case as the former wife failed to file any such objection to her ex-husband’s bankruptcy case.

The appellate court then summarily rejected the ex-husband’s argument that the former wife failed to make a sufficient case of contempt, and ordered the case sent back to the trial judge for reconsideration of whether husband was in fact in contempt of court and the former wife’s attorney’s fees.

So, this case makes clear that one spouse–the former wife in this case–need not file objection in the other spouse’s bankruptcy case in order to prevent discharge of such marital debt.  Rather, the “marital debt” is not dischargeable even when no objection to discharge is filed.

And while that reasoning seems clear, what about the holding that the debtor owes his or her former spouse the full amount of the discharged debt when that former spouse has not paid a penny of the debt in issue and has not even been sued to collect the debt, and there is no judgment against her to pay any of the debt?  For if the ex-husband now pays the full amount of the debt to the former wife  to avoid jail for contempt of court, there remains no assurance that former wife will use all or even part of those monies to pay the creditor.  Or, perhaps, the former wife negotiates with the marital debt creditor so that she pays only part of the debt in return for a full release of the debt, and by so doing pockets some of money for herself.  The trial court in this case may have been best situated to assess how “judgment proof” the former wife is and craft judgment accordingly so that a windfall to the former wife did not result at the unfair expense of the ex-husband.

As a practical matter, the ex-husband may find himself better off to negotiate quickly with US Bank to pay 50 cents on the dollar, for example, in order to get a full release of himself and his former wife on the marital line of credit debt.  Maybe that is the real lesson in this case–assuming he has the money to pay.

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri; 816.781.6000

Domestic Relations Law and General Practice–Divorce, Modifications, Paternity, Child Support, Custody, & Visitation

http://www.kurthking.com

January 8, 2013

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

Filed under: Litigation,Missouri Personal Injury Law,Uncategorized — kurthking @ 9:53 pm
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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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