Will foes of medical malpractice damage caps prevail in MO?

The advocates of so-called tort reform are back in Missouri. Although the cap on damages in medical malpractice cases was ruled to be unconstitutional last year, Missouri Republicans have vowed to get the limit restored. Doing so, they say, will control health care costs and encourage doctors to remain in Missouri.

When the tort reform bill was enacted in 2005, it included a $350,000 cap on non-economic damages such as pain and suffering in medical malpractice cases. Before 2005, Missouri still had a cap, but the amount was higher and adjustable for inflation.

The Missouri state constitution includes a Bill of Rights that states, “”the right of a trial by jury as heretofore enjoyed shall remain inviolate.” The court decided that any limit on damages that restricts a jury violates the constitutional right to a trial by jury. The advocates of tort reform say they will try to enact legislation to eliminate this common law right to trial by jury for healthcare malpractice and replace it with a statutory right to sue.

Opponents of the tort reformers say that the right to a jury trial is central to basic liberties and rights and must be protected. One Missouri lawyer has said that advocates of a damages cap are trying to enact immunity from negligence actions for a single group – health care providers — and let politicians decide what appropriate damages are.

This may be an uphill battle for those arguing that there should be no caps on damages. Republicans in the Missouri House have a super-majority. Moreover, neighboring Kansas just upheld its own cap — $250,000 – on non-economic damages. However, actually implementing revised damages caps could take some time. To pass an amendment to change the constitutional right to trial by jury would have to be approved by the voters,, and any legislation passed would have to be signed by the governor.

New York is in the minority of states with no caps on non-economic damages. However, that is not because proponents of tort reform in Albany haven’t tried. Legislation has been introduced in every recent session, and depending on the future composition of the legislature, it may be just a matter of time.

Source: CBS St. Louis, “MO GOP To Bring Back Tort Reform In 2013,” Jan. 5, 2013.