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Brett Emison
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Mo. Supreme Court Upholds Constitution; Overturns Damages Caps

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Much may be written about yesterday's decision by the Missouri Supreme Court striking down arbitrary medical liability damages caps in order to ensure that "the right of trial by jury as heretofore enjoyed shall remain inviolate…." [Mo. Const. Art. I, sec. 22(a)] Indeed, it was a good day for supporters of constitutional rights and limited government.

Some will debate the decision. Some – like consumer advocates, constitutionalists, limited government advocates – will praise the decision. Others – like the Chamber of Commerce and insurance companies – will decry the decision. Already – less than 24 hours after the decision, the Executive Vice President of the Missouri State Medical Association is echoing the tired rallying cry of "lawsuit crisis" and "powder kegs". Some business and special interest oriented legislators have already begun talking about amending the Missouri Constitution to limit the right to trial by jury in order to reimpose these caps on innocent victims.

But who is thinking about, talking about, or writing about the victims — innocent victims — that the Constitution and, now, the Missouri Supreme Court are there to protect?

"The losses that we're talking about in these cases are the worst kind of losses – human losses. Everyone who believes in the constitution and the Bill of Rights should be thrilled with this decision today."

– Tim Dollar, president of the Missouri Association of Trial Attorneys

The real story of this decision is not about trial lawyers. It's not about insurance companies. It's not about medical associations. It's not about the Chamber of Commerce. It's not about politics.

The real story is about Naython Watts. And it's about every citizen's right to seek redress from someone who has injured them.

Naython's mother is Deborah Watts. During her pregnancy, Deborah was treated at a facility owned by Cox Medical Centers. At 39 weeks, Deborah was seen by Dr. Melissa Herrman, who was then a 3rd year resident. Watts was experiencing cramping and decreased fetal movement. At trial, the evidence indicated that Dr. Herrman did not perform appropriate tests, failed to notify Watts of the significance of decreased fetal movement, and failed to perform any further diagnostic monitoring. Dr. Herrman's supervisor, Dr. William Kelly, MD, signed off on Dr. Herrman's course of treatment.

The next day, Deborah Watts was admitted to the hospital due to lack of fetal movement. Watts was placed on a fetal monitor that morning, which showed fetal hypoxia and acidosis. The standard of care required immediate C-section delivery, but that did not occur until more than an hour-and-a-half later.

Because of the lack of oxygen, Naython Watts was born with catastrophic brain injuries. Naython is now 5 years old. He will never be able to walk and has difficulty feeding himself. Naython will live his entire lifetime dealing with the pain, suffering, teasing, and other lost enjoyment of normal, everyday life that the vast majority of us get to enjoy. These were Naython's "non-economic damages."

"I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution."

– Thomas Jefferson

Missouri has had caps on non-economic damages in medical malpractice cases for a long time. Prior to 2005, the caps adjusted for inflation and were approximately $579,000. In 2005, the Missouri legislature restricted the caps further. It lowered the caps to $350,000, eliminated adjustment for inflation, and applied a single cap for all defendants. Effectively, the legislature took away from the jury the ability to fully compensate an injured victim and instead imposed its arbitrary, one-size fits all, cap for all circumstances – no matter what the evidence actually showed.

In overturning the cap, the Missouri Supreme Court preserved and upheld the right to trial by jury that has been held inviolate in Missouri since its original constitution in 1820. The Supreme Court confirmed that the right to trial by jury includes the duty of the jury to determine actual damages inflicted on the injured victim. "The plaintiff has the full benefit of that right free from the reach of hostile legislation," the Supreme Court held.

It turns out that a special interest coalition that included the Chamber of Commerce, insurance companies, and medical associations were largely behind implementation of the 2005 damages caps. In the months before the legislative hearings on the bill, these organizations claimed there was a nationwide litigation crisis and excessive jury awards. These groups called for caps of $250,000 for non-economic damages that included pain and suffering. Some even claimed that doctors were "fleeing" states without such caps on damages, closing their practices, or practicing "defensive medicine" by disregarding their oaths and ordering unnecessary tests and procedures.

However, a collection of 18 independent scholars, led by Professor Neil Vidmar, filed an amicus brief demonstrating this alleged lawsuit crisis simply never existed.

In fact, statistics show that the number of patient-doctors in Missouri has steadily increased over the past 4 decades. The American Medical Association's authoritative annual compendium – described as "the most complete and extensive source of physician-related information in the United States – showed that the number of doctors actively practicing patient care in Missouri increased even during the alleged periods of "litigation crisis." (Brief of Amicus Curiae Neil Vidmar, et al.). The increase occurred both in terms of absolute numbers and relative to Missouri's population.

Img Source: Brief of Amicus Curiae Neil Vidmar, et al.

The data also showed an increase per capita for "high risk" specialties such as neurosurgeons and OB-GYNs.Img Source: Brief of Amicus Curiae Neil Vidmar, et al.

Studies in other states have shown that medical malpractice damages caps limit constitutional rights without any of the supposed "benefits" used to justify their implementation. For example, a study of the $250,000 damages cap in Texas showed that there was no support for the claim that physicians were leaving Texas prior to the caps and no support for the claim that physicians moved to Texas after the caps. In short, there was no shortage of doctors before "reform" and no increase in doctors after "reform."

"Before Texas adopted tort reform in 2003, proponents claimed that physicians were deserting Texas in droves. After tort reform was enacted, proponents claimed there had been a dramatic increase in physicians moving to Texas due to the improved liability climate. We find no evidence to support either claim."

Does Tort Reform Affect Physician Supply? Evidence from Texas

Indeed, even tort reform advocate Ted Frank of the Manhattan Institute, agreed that the study "substantially undermines the empirical case for the conventional wisdom that Texas' 2003 reforms against medical malpractice lawsuits attracted more doctors to Texas." Frank agreed the report was so damning he is "going to stop claiming that Texas tort reform increased doctor supply without better data demonstrating that."

"Representative government and trial by jury are the heart and lungs of liberty. Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hounds."

– John Adams

While the supposed benefits failed to materialize, damage caps like these have Draconian results for many patients and severely limit – or deny completely – their right to trial by jury and access to the Courts established and protected by the Constitution.

Such caps disproportionately affect children, the elderly, and stay-at-home parents. You see, these people are unlikely to be employed outside of the home and are unlikely to provide financial economic support to dependents or spouses. Thus, their economic loss is much lower than those gainfully employed and providing financial support to others. Arbitrary caps enacted by a legislature without consideration of the evidence at trial disproportionately affects these victims. Moreover, under such caps, a child who is the victim of malpractice and born disfigured or brain damaged must live an entire lifetime with this damage while an elderly person may live only a few months or a few years with similar injuries. Under the arbitrary caps that ignore the right to trial by jury, the non-economic damages are the same.

And what about accountability? Why should someone who is negligent not be held accountable? Damage caps like those struck down by the Missouri Supreme Court provide de facto immunity for many negligent actors. If the negligent actor is not responsible, who then bears the cost of their bad conduct? Answer: You and me.

Tort "reforms" like damage caps have the perverse effect of bloating government and penalizing tax payers through government funded bailouts of negligent actors. If the negligent person or company is not responsible for the damages, then the burdens must be borne by tax payers through Medicare, Medicaid, and assistance programs. Or it must be borne by the public through charitable institutions. Or it goes uncompensated and must be borne by the victim and their families.

"The right to trial by a jury is the most fundamental of our constitutional rights. Query: If a person has a right to a jury trial and the jury award is completely taken away, did that person have a court open to him for an injury done to him? Did he have a remedy? Was justice administered without denial? Did he have his constitutional right to a jury trial?

Judge Wilson, WV Supreme Court

The right to trial by jury – whether under the Missouri Constitution or the 7th Amendment of the United States Constitution – is the ultimate lynch pin for all other constitutional rights. Freedom of speech, freedom to keep and bear arms, freedom to contract, freedom of religion — all are ultimately protected by the freedom – inviolate in Missouri – to have your case heard in a trial by jury.

The Supreme Court's decision was a good one for all who believe in our Constitution and Bill of Rights.

[More on Your 7th Amendment Rights]

Update (8/1/2012; 11:05 a.m CDT):

Some legislators have already tipped their hands – showing themselves to be unconcerned about the fundamental constitutional rights of Missourians and instead beholden to special interest groups like the Chamber of Commerce and insurance industry.

Missouri Speaker Tim Jones in unswayed by the fundamental right to trial by jury held inviolate in the Missouri Constitution or the authority of the Supreme Court. Instead, Speaker Jones has indicated that comprehensive tort reform – including limiting the fundamental right to jury trial through new medical malpractice caps – will be a top priority in the Missouri House in 2013.

House Judiciary Chair Stan Cox is supporting elimination of the non-partisan, merit selection of Missouri judges and replacing it with a politically based system that special interests hope to control by permitting a single-term governor to appoint a majority of the judicial nominating commission. Under the proposed change, a single-term governor would have unfettered control over nominees to Missouri appellate courts – including the Supreme Court.

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(c) Copyright 2012 Brett A. Emison

Follow @BrettEmison on Twitter.

4 Comments

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  1. Eric says:
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    I’m one of the people that these kind of caps are affecting. MICRA in California is preventing me from suing the hospital and doctor that killed my disabled sister this past March.

  2. Brian McCallister says:
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    Great information and great insight into our founding fathers’ vision of democracy in a free country, of which the right to trial by jury is the fulcrum.

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    Thank you for taking the time to defend the ones who need it the most. This editorial is very thoughtful and well written.

  4. Jessie Hoerman says:
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    Well written Brett, thanks for taking the time to recap this. I am sickened, but not surprised, by the quick actions of special interest in Missouri. I hope brave people like Deborah Watts will continue to fight back for every Americans’ right to a day in court making the Chamber’s political reach irrelevant. Please continue to keep us informed.