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Missouri Reinstates Cap on Medical Malpractice Non-Economic Damages

Today, the governor of Missouri signed a bill creating legislation which will reinstate a cap on non-economic damages in medical malpractice claims. The legislation will cap non-economic damages at $400,000 in most cases, but will allow for a $700,000 cap in cases of “catastrophic” injuries (such as paralysis, loss of vision and brain injuries) and in cases of death. Non-economic damages include damages such as pain and suffering and emotional distress. Economic damages, such as medical costs and lost wages, are not affected by the legislation. The law also provides that the caps would increase by 1.7% each year.

When determining whether the $400,000 or the $700,000 cap applies, the new law allows the judge to make that determination. It states that:

In any claim for damages under this chapter, and upon post-trial motion following a jury verdict with noneconomic 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.

This measure is not the first non-economic damages cap in Missouri’s history. In 2005, a $350,000 cap was instituted on non-economic damages in medical malpractice cases. However, three years ago, the Missouri Supreme Court held that the cap was unconstitutional under the right to trial by jury in Watts v. Lester E. Cox Medical Centers (2012). In Watts, the jury had awarded the plaintiff $1.45 million in non-economic damages, but this award was reduced to $350,000 by the judge in accordance with the statutory cap The plaintiff challenged this reduction, claiming that the statute violated her right to trial by jury. The Missouri Supreme Court agreed, reasoning that once the right to trial by jury attaches, the state constitution provides that it shall “remain inviolate” and that “the amount of noneconomic damages is a fact that must be determined by the jury and is subject to the protections of the ... right to trial by jury.”

The current legislation attempts to avoid the argument that such a cap violates a plaintiff’s right to trial by jury by specifying that medical malpractice claims are a statutory cause of action, not a common law one. The law states that:

A statutory cause of action for damages against a health care provider for personal injury or 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.

Legislators believe that this statement will allow the courts to support the new cap and hope to circumvent the 2012 Missouri Supreme Court’s reasoning in Watts which concluded that the right to trial by jury attached to medical malpractice actions.

In Watts, the Missouri Supreme Court looked at Missouri common law at the time that the Missouri Constitution was adopted in 1820. At that time, the law “recognized medical negligence as one of five types of ‘private wrongs’ that could be redressed in court.” The court further reasoned that “civil actions for damages resulting from personal wrongs have been tried by juries since 1820” and the plaintiff’s “action for medical negligence, including her claim for non-economic damages, ‘falls into that category’ and is the same type of case that was recognized at common law when the constitution was adopted in 1820.” Therefore, the court concluded that the plaintiff had “a right to trial by jury on her claim for non-economic damages caused by medical negligence.”

It is not clear that the Missouri Supreme Court justices who decided Watts would be convinced to change their mind based on the language of the new law. However, the Watts decision was a close one (4-3), and it is possible that legislators hope that the inclusion of the language will allow for justices who might hear a challenge to the new law to distinguish the Watts decision and uphold the cap.

North Carolina also has a statutory cap on non-economic damages in medical malpractice actions. In 2011, the North Carolina legislature enacted tort reform for medical malpractice liability. Part of this tort reform limited the amount of damages a plaintiff can receive for noneconomic damages to $500,000. However, there is an exception to the North Carolina cap on noneconomic damages. G.S. 90-21.19(b) states that

Notwithstanding subsection (a) of this section, there shall be no limit on the amount of noneconomic damages for which judgment may be entered against a defendant if the trier of fact finds both of the following:

(1)    The plaintiff suffered disfigurement, loss of use of part of the body, permanent injury or death.

(2)    The defendant's acts or failures, which are the proximate cause of the plaintiff's injuries, were committed in reckless disregard of the rights of others, grossly negligent, fraudulent, intentional or with malice.

We might wonder whether it is possible for the North Carolina non-economic damages cap to be challenged as the Missouri cap was in 2012. This argument was made in the Spring 2012 issue of the North Carolina State Bar Journal in an article titled “The Brave New World of Malpractice Litigation.” The article cites a letter written shortly after the introduction of the North Carolina law by the former Chief Justice of the North Carolina Supreme Court which expressed his view that the law did violate the constitutional right to trial by jury.

The North Carolina Constitution states that “In all controversies at law respecting property, the ancient mode of trial by jury is one of the best securities of the rights of the people, and shall remain sacred and inviolable.” In his letter, the former Chief Justice stated that “[t]he North Carolina Supreme Court has long recognized that compensatory damages, including damages for ‘mental and physical pain,’ is a form of ‘property’ protected by the constitutional right to trial by jury.” While “the right to have punitive damages assessed… is not property,” “the right to recover actual or compensatory damages is property.” The former Chief Justice concluded that “the right to have a jury determine the amount of compensatory damages, including noneconomic damages” is “sacred and inviolable” and “cannot be eliminated or restricted by the General Assembly.”

If you have been injured as a result of medical malpractice, contact an attorney at Rosensteel Fleishman, PLLC (704) 714-1450, to discuss your options.

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