Tort “Deform” May Become Reality in Missouri

A bill that will set an award limit in medical malpractice lawsuits was passed by Missouri lawmakers. It was passed as a compromise between Republicans and Democrats, who had disagreed about previous efforts to pass damages caps through the State Senate.

A Closer Outline of the Bill Passed by Missouri Senate

• A $400,000 cap for damages stemming from a botched medical procedure.
• A $700,000 cap in catastrophic injuries – specifically defined in the bill — including paralysis, brain injury or a loss of vision.
• An existing cap on noneconomic damages in wrongful death cases was raised to $700,000 from $350,000.

The limits apply only to “non-economic damages” as opposed to damages such as lost wages or medical costs resulting from negligence. What exactly are non-economic damages? Well, they are harms that are difficult to document. For example, there have been cases where a patient has the wrong leg amputated due to an oversight by a doctor and nursing staff. In addition to ruining the patient’s career and forcing the patient to amass thousands of dollars in additional medical expenses, the issue is the value placed on the ability to walk; the ability to play with your kids; the ability to help around the house. There’s no clear formula for putting a number on that harm. That is why the Founders to our country placed such decisions in the hands of a jury in a civil trial. Tort “deform” circumvents the Constitution by allowing a state legislature to come up with an arbitrary number to serve as “proper” compensation for a victim’s non-economic harm.

Under the bill, all three caps would increase annually by 1.7 percent.

In 2012, the Missouri Supreme Court overturned damage limits which have now been reinstated. The court decided restricting the amount of damages a jury can award was in violation of the constitutional right to jury trial guaranteed by the Sixth Amendment.

“The state legislature is attempting to subvert the constitutional right to personal injury litigation by changing the functions by which it operates,” said Missouri University law professor Philip Peters.

Essentially, legislature is trying to end the common law right to personal injury litigation and then reenact it by statutes, since newly made statutory rights don’t have the right to a jury trial.

By limiting damages, the intention is to artificially lower insurance premiums for medical malpractice cases. However, experts say ultimately the law will benefit insurance companies to an unprecedented degree.

The bill is SB 239. The vote was 28-2. And, it will now head to the Missouri House of Representatives.