In July of 2012 the Missouri State Supreme Court ruled that limits on awards for non-economic damages in medical malpractice lawsuits are unconstitutional. Prior to that ruling Missouri had a cap in place of $350,000, which had been signed into law by the Missouri legislature and, then Governor, Matt Blunt in 2005. Experts believe that this cap, along with other malpractice reforms, helped to stabilize the medical professional liability insurance market in Missouri. Additionally, these reforms led a number of companies to move into Missouri who had previously been unwilling to sell policies to physicians and healthcare workers in that state. Lawmakers and physicians now fear that the removal of this cap will lead to astronomical jury awards that will, in turn, bring about increased healthcare costs and an overall decrease in access to care.
The fear of such a negative impact has led the tort reform coalition, Show-Me Tort Reform, to advocate for new legislation that would reinstate the cap. This new legislation would take the form of either a bill framed specifically to avoid the constitutional challenges cited by the court in their rejection of the prior law, or a constitutional amendment. Lawmakers would prefer the former however, since an amendment would mean clearing the additional hurdle of ballot approval. As we saw in California a ballot question can easily end up leading to an expensive and contentious campaign to educate the public and respond to opposition. The bill likely to be introduced this year would put in place a cap of $500,000, $150,000 more than the previous cap.
Opponents of damage caps in medical malpractice cases argue that the limits hurt an injured patient financially and infringe on their individual rights. Some say that the reforms shield bad doctors from accountability for their actions. However, the legislation does not affect the amount a patient can recover for economic damages such as medical expenses, lost wages, and other real costs. The non-economic damages are typically related to “pain and suffering,” which is often the largest payment category. Further, non-economic damages calculations are notoriously subjective, amounting to an attempt to put a dollar amount on the experience of pain or the lack of pleasure. No doubt those are real losses, and they should be compensated if malpractice truly is the cause, but surely giving some kind of guidance in the form of an upper limit is within the bounds of reason and moderation. Finally, let’s not forget that the groups that tend to protest these actions most loudly are the trial attorneys who make their living collecting a percentage of those non-economic damage awards.
Show-Me Tort Reform, along with other concerned individuals and interest groups, have organized a “White Coat Rally Day” in Jefferson City at the capitol building on February 24th in support of such legislation. Physicians concerned about the effect of limitless non-economic damages are encouraged to register for the event here.
