Medical liability limits on GOP radar

Sunday, January 6, 2013

JEFFERSON CITY, Mo. -- Lawmakers have their eyes on reinstating liability limits for medical malpractice cases after the state Supreme Court struck down an existing cap on damages last summer.

GOP leaders say restoring the liability limits invalidated by the high court is needed to control health-care costs and help keep doctors in Missouri.

A significant piece of the Republican effort to curb liability lawsuits was a cap of $350,000 for noneconomic damages such as pain and suffering in medical malpractice cases. Before, Missouri had an inflation-adjusted cap of $579,000 for noneconomic damages against each defendant for each act of negligence.

The Missouri Supreme Court ruled 4-3 the 2005 law was unconstitutional. The court's majority pointed to the state constitution's Bill of Rights, which states "the right of a trial by jury as heretofore enjoyed shall remain inviolate." Because Missourians had a common-law right to seek damages for medical malpractice claims when the constitution was enacted in 1820, the court concluded any limit on damages that restricts the jury's fact-finding role violates the constitutional right to trial by jury.

Supporters of reinstating the 2005 damages cap have proposed amendments and suggested legislation to eliminate the common-law right to file a lawsuit over health-care services while replacing it with a statutory right to sue.

The Missouri State Medical Association said the Legislature has been allowed to limit damages for a cause of action that it creates. Jeff Howell, the association's director of government relations and general counsel, said doctors' insurance premiums and health care costs are likely to increase without a limit on liability.

"Now we have unlimited risk, so there's really nowhere for premiums to go but up," Howell said. "And when you do that, then you have physicians that practice a lot defensive medicine, they worry more about getting sued and that increases the overall cost of health care."

Opponents of the damages cap contend the right to a jury trial is the lynchpin for all basic liberties and must be protected.

"It's a perilous thing to try to accomplish and one that flies in the face of the authors of our Missouri Constitution and frankly our United States Constitution and one that the citizens of this state should be very leery of," said Tim Dollar, the president of the Missouri Association of Trial Attorneys. "The constitutional right to jury trial is something that's been a part of our system since its inception."

Dollar, a lawyer in Kansas City, said the cap is an attempt to carve out a single group and give immunity from negligence while allowing politicians to decide appropriate damages instead of a jury.

This past fall, the state Supreme Court in neighboring Kansas upheld that state's $250,000 limit on noneconomic damages in medical malpractice cases.

A Missouri constitutional amendment would need to be approved by voters, and legislation passed by the Legislature would go to the governor.

Democratic Gov. Jay Nixon said Friday that it is necessary to look at the court case to determine whether a statutory or constitutional amendment approach is best. He noted Missouri had capped damages previously.

"I think what you need there is predictability in that insurance market, and so I'm not philosophically opposed to some limitation," he said.

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