Case raises constitutional challenge to new limits on wrongful death awards

Thursday, February 23, 2006

JEFFERSON CITY, Mo. -- An attorney for parents whose young son died in a Kansas City hospital is challenging the constitutionality of a new Missouri law that limits the amount of money juries can award in wrongful death cases.

The lawsuit, filed by Kansas City lawyer William J. Jacob, appears to be one of the first to take aim at the "tort reform" law enacted last year as one of the top priorities of the Republican-led legislature and Gov. Matt Blunt.

'Arbitrary' provisions

It contends the law contains "unreasonable, arbitrary and discriminatory" provisions in violation of the state constitution, and that it unconstitutionally prevents people who were wronged before its Aug. 28 effective date from filing suit under the old, more financially generous law.

"I think the legislature improperly reached back," Jacob said Wednesday. "I think the retrospective argument is extremely strong."

But others don't think his case has much merit.

The Missouri Association of Trial Attorneys -- one of the leading critics of the law -- tried to discourage Jacob from raising the constitutional challenge, because it thought his underlying case was weak and potentially filed past the statutory deadline, said Sharon Geuea Jones, MATA's governmental affairs director.

"This guy is a lone ranger out there and definitely is not working with us," Jones said.

The wrongful death suit, filed Jan. 9 in Jackson County Circuit Court, has escaped public attention partly because Jacob was not seeking any. The plaintiffs are Zebedee and Karen Collins, whose 14-month-old son, Ameen Collins, died Jan. 8, 2003, at Children's Mercy Hospital.

The hospital is the lead defendant in the lawsuit, which also names 16 other people and corporations involved in providing health care to the child.

An attorney for Children's Mercy Hospital was not available for comment Wednesday.

The 2004 law was promoted by Republicans as a way to help hold down the rising costs of medical malpractice and business liability insurance, thus making Missouri a more attractive place to work.

Among its key provisions was a permanent $350,000 cap on non-economic damages, such as pain and suffering, in medical malpractice cases -- a drop from the previous inflation-adjusted cap that had risen to $579,000. The law also limited punitive damages in all liability cases to $500,000 or five times the actual damages awarded to a plaintiff, whichever is greater.

Picking up the tab

Another key provision limited the extent to which wealthier co-defendants can be made to pick up the tab of other defendants who can't afford to pay their share of the damages.

Jacob said he is primarily pursuing the argument that the law's restrictions should not apply to people who were harmed before Aug. 28, even if their lawsuit was filed after that. The broader claim that the law is simply unconstitutional is a secondary argument, he said.

Sen. Delbert Scott, one of the lead sponsors of the law, said he was unaware of the legal challenge but not surprised.

"The courts will have to do their review and hopefully, within a year or two, the challenges can be exhausted and [insurance] rates can be reduced so physicians can start returning to Missouri again," said Scott, R-Lowry City.

Jones said other "more legitimate challenges" to the law also are in the works and are likely to be filed later this year.

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