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Image Source: Springfield News-Leader
Mo. Rep. Eric Burlison

Offensive.  Shameful.

Those were the first two words that came to my mind (along with a few others that are best left unprinted) as I read an article from the Springfield News-Leader in which Missouri state representative Eric Burlison compared a brain damaged baby to a Mega Millions lottery winner.


Talking about the “need” for caps on damages, Burlison said:

“It’s the same reason when the Mega Millions jackpot is at $500 million or up, people who don’t normally buy a lottery ticket will suddenly start buying a lottery ticket.”

– Rep. Eric Burlison via the Springfield News-Leader

Now, was Burlison talking about stopping frivolous cases?  No.  Because the caps he’s talking about don’t take effect until after the jury has determined the defendant doctor was liable and actually caused injury to the victim.  Burlison’s bill will do nothing to prevent frivolous lawsuits.

Specifically, Burlison was talking about Naython Watts, whose Supreme Court case overturned the unconstitutional cap on damages that Burlison wants to reinstate.  I wrote about Naython’s case when the Supreme Court decision was handed down:

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.”

Mo. Supreme Court Upholds Constitution; Overturns Damages Caps

Naython Watts – and countless others like him – that’s who Burlison compared to Lotto winners.

Offensive.  Shameful.  Disgusting.

In Naython’s case, the Missouri Supreme Court confirmed that the Missouri Constitution ensured that “the right of trial by jury as heretofore enjoyed shall remain inviolate….”  [Mo. Const. Art. I, Sec. 22(a)].  In overturning the caps, the Supreme Court confirmed that the right to jury trial under the common law 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.

Apparently unconcerned about such constitutional restrictions, Burlison has filed a bill that would strip medical malpractice cases like Naython’s right out of the common law and replace it with a statutory cause of action that the legislature could meddle with at its leisure and whim without pesky constitutional concerns.  It’s also probably not that surprising to learn that Burlison has worked for CoxHealth – which ran the Lester E. Cox Medical Centers that were a defendant in Naython Watts’ lawsuit – and Cerner, an international healthcare technology company.  While at CoxHealth, Burlison described his activities as “a business analyst / problem solver.”

I’ve done this before (here and here), but it appears the need remains.  Let’s take a look at popular tort reform myths and why they are false.

Tort Reform Myth: Damage Caps Prevent Frivolous Lawsuits

False.  This is a favorite of folks like Burlison, the American Medical Association, and the Chamber of Commerce.  Here’s a tweet from American Medical News that came out shortly after the Watts decision.

AMedNews Tweet

It’s a popular myth.  But it’s not just false, it’s a pants-on-fire lie.

By definition, damages caps can only apply to cases with merit and which the plaintiff not only wins, but has suffered and is awarded substantial non-economic damages.

In order for unconstitutional damages caps – like those sought by Burlison – to apply, the following must occur:

(1) The jury must find the doctor, hospital, or other health care provider was liable for the injury (an actual cause-in-fact of the injury); and

(2) The jury must find that the injured victim suffered some non-economic loss or injury (an incomplete list of non-economic damages includes pain, suffering, mental anguish, disfigurement, loss of consortium, loss of care, loss of comfort, loss of support, lost enjoyment of life, etc.) that was caused by No. (1); and

(3) The jury must find that the value of the injured victim’s non-economic loss is greater than $350,000 over the victim’s lifetime.

These caps have absolutely nothing to do with frivolous lawsuits and it is disingenuous and outright misleading for anyone to suggest otherwise.

While these caps don’t restrict frivolous lawsuits, they do fundamentally restrict valid lawsuits and, instead of protecting innocent victims, these caps protect negligent doctors and hospitals from being held accountable and accepting responsibility for the damage they cause.  Burlison acknowledged as much in the News-Leader article, when he said that he saw “caps as a way of keeping the number of claims down.”

Burlison’s admitted and explicitly stated goal is to re-institute patently unconstitutional damages caps for the purpose of restricting valid claims against negligent doctors.

Offensive.  Shameful.  Disgusting.

Tort Reform Myth: Arbitrary Damages Caps Reduce Defensive Medicine and Lower Health Care Costs

False. The New England Journal of Medicine concluded that arbitrary damages caps do not lower health care costs, may result in more negative outcomes as doctors would not be held accountable for the full cost of medical errors.

Strategies to control costs associated with medical malpractice and defensive medicine must be responsible and targeted. These strategies must not impose arbitrary caps on damages for patients who are injured as a result of malpractice. According to the Congressional Budget Office, arbitrary caps on damages would reduce national health spending by only 0.5%. But although such caps would have a barely measurable effect on costs, they might adversely affect health outcomes.

– A Systematic Approach to Containing Health Care Spending, The New England Journal of Medicine

As the NEJM alluded, damage caps actually threaten to make the malpractice problem worse. Shirley Svorny, of the conservative Cato Institute (founded by in part by the Koch brothers, Charles and David Koch), has written, “[m]uch of the protection consumers have against irresponsible and negligent behavior on the part of health care providers hinges on oversight and incentives created by the medical professional liability insurance industry.” Thus, she concludes, damage caps “could result in more cases of negligence and substandard care.”

Tort Reform Myth: Without Caps Doctors Will Flee The State

False. Statistics from the American Medical Association show that the number of patient-treating physicians has steadily increased over the last 4 decades. This increase occurred both when viewed in terms of absolute numbers and relative to Missouri’s population.

Doctor-Patient Ratio MO - Vidmar

The data also showed an increase per capita for “high risk” specialties such as neurosurgeons and OB-Gyns.

Doctor-Patient Ratio MO - High Risk - Vidmar

Data from other states supports the conclusion that arbitrary damages caps do not affect the number of practicing physicians.

“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

Tort Reform Myth: Damage Caps Reduce The Number Of Lawsuits

False. According to the St. Louis Post-Dispatch, In 2002 (prior to the lowered caps), there were 1,704 medical malpractice claims filed in Missouri courts. In 2010, (5 years after the lowered caps), there 1,760 malpractice suits.

Tort Reform Myth: Medical Malpractice Verdicts Will Skyrocket Without Caps

False. The average non-economic verdict paid out before the unconstitutional damage caps were put into effect was $314,000 and has not changed significantly under that law.

Constitutional rights should not be attacked, or demeaned, or trivialized for political gain or because one side lost a court battle. Constitutional rights are the cornerstone of our society and, as Missouri founders explicitly said, should remain inviolate.

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.

Tort Refom FACT: You Can’t Have Strong 2nd Amendment Without a Strong 7th Amendment

True.  If you’re going to support the 2nd Amendment… or the 1st Amendment… or any other amendment, you must support the 7th Amendment right to jury trial.

Burlison was named the 2013 Conservation Legislator of the Year and is active member of the National Rifle Association.  As a 2nd Amendment advocate and supporter, Burlison should be mindful of the need – indeed, the duty – to preserve all of our constitutional protections and not just the 2nd one on the list.

As Tea Party Nation founder, Judson Phillips and Tea Party advocate Andrew Cochran have said, “Real conservatives need to defend each and every God-given right enumerated in the Bill of Rights, and fight to maintain the limits on central power inherent in the Constitution.”

Too many Americans who claim to base their political decisions on the Constitution and Bill of Rights fold like a paper airplane when push comes to shove.  Too many of us pick our founding documents apart to choose which of the limits on power in the Constitution, or which of the ten amendments in the Bill of Rights, we back at any given moment.

– Andrew Cochran, “Capping Gun Rights & Jury Trials Equally Wrong

Cochran also wrote that “Liberals who love civil jury trials for their causes need to protect our right to bear arms, and conservatives need to protect the right to civil jury trials from crony capitalists who would abridge our right to a civil jury trial through ‘tort reform.’”

The sad fact is that not only is this kind of selective enforcement of constitutional principles illogical and indefensible, it’s completely unnecessary.  As the myths above show, damage caps like those supported by Rep. Burlison just don’t work.

We must preserve and protect each fundamental right if we are to protect any of them. Constitutional rights should not be attacked, demeaned, or trivialized for the political gain of an isolated lobbying group. Constitutional rights are the cornerstone of our society and, as Missouri’s founders explicitly said, should remain inviolate.

Naython Watts wasn’t a lottery winner.  He was a victim.  His life was stolen from him by a negligent doctor, who was inexperienced, who didn’t perform the correct tests, who failed to notify Naython’s mother of the significance of her symptoms, and who failed to perform any other monitoring.

Naython will never walk.  He has difficulty feeding himself.  He will live his entire lifetime dealing with the pain, suffering, teasing and other trials of the condition that was inflicted upon him.

And for this, Rep. Burlison compared him to a Mega Millions winner.

Offensive.  Shameful.  Disgusting.

Image Source: Springfield News-Leader

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© Copyright 2014 Brett A. Emison

Follow @BrettEmison on Twitter.


  1. Gravatar for jc

    Offensive, shameful,disgusting- - -those are the first three words that came to my mind when I read this Brett Emison blog post. How dare Brett use Naython Watt's tragic injury to stump for higher plaintiff attorney payouts. A typical plaintiff attorney fee is 40%, which is pure profit! That is what the Missouri Supreme Court really did, legitimize big payouts for the plaintiff attorneys. Most doctors carry $1 million in insurance, so this plaintiff attorney really hit the jackpot! Ofcourse, he will have to fight to get at the doctors assets to collect his full fee, and if the doc has no outside assets, or if they are in his wife's name or the doc declares bankruptsy, I guess the plaintiff attorney will have to settle for $400K! Bet greedy plaintiff attorney does not share his $400K with the poor patient.

    But lets do some examination of Brett's arguments. In these "bad baby" cases, the OB Gyn is in a tough position. It is generally impossible to tell exactly when the cerebral anoxia occurred. Did the baby suffer cerebral anoxia the day before when she came into visit the doctor (probably) or during birth. Cerebral anoxia occurrs very quickly in utero and when it happens, there is not much that can be done. Did the jury really look at the medical facts of the case or did they look at the child with empathy and did that play into their decision? We will never really know if justice was truly done in this case, and that is why we need medical courts of medical professionals evaluating these cases instead of juries and dumb judges. But let's go thru and rebut Brett's points one by one.

    Tort reform myth: Damage Caps Prevent Frivolous Lawsuits - -Here Brett is setting up a straw man argument. Frivolous suits are a problem but I never said Damage Caps would decrease frivolous suits. Frivolous suits are a real problem. Last year, the Doctors Company tried 264 cases nationwide in the first half of 2013 and won 91% of them. That means that plaintiff attorneys failed their clients more than 9 out of 10 times, a failure rate unheard of in American Industry. The way to solve the horrific failure rate and permanently stop frivolous malpractice litigation is to allow doctors to countersue plaintiff attorneys for filing frivolous litigation. But the plaintiff's bar does not want to be held accountable for their failure rate so they throw money at politicians to prevent plaintiff attorneys from being held accountable.

    Tort Reform Myth: Arbitrary Damage Caps Reduce Defensive Medicine and Lower Care Health Costs. If a patient comes into the ER with transient dizziness, it is most likely due to something other than a brain tumor or stroke. But the ER doctor is duty bound to order a CT head to rule out brain tumor or stroke. Only 1 in 100 CT scans of the head will show brain tumor or stroke in this situation. But if that ER doc does not order the CT head and the patient eventually ends up with a brain tumor or stroke - -the ER doc gets sued and his career is over! Medical courts would realize that it is not cost effective to CT scan everyone and if the ER doc did a reasonable history and physical and documented it, and did not feel that a CT head was indicated, that should exonerate the ER doc even though at some later date the patient did have a tumor or stroke.

    Tort Reform Myth, without Caps, docs will flee the state: Another Brett mistruth. Different specialists have different malpractice risks. Neurosurgeons, vascular surgeons, OB-Gyns and radiologists pay among the highest malpractice rates because their specialities have the sickest patients with the greatest chance of having a bad result and subsequently getting sued. So in Ohio, in my small town, in the late 1990s we had a medical malpractice crisis because of bonehead med mal cap decisions like the Missouri Supreme Court. We had 5 good neurosurgeons between 2 hospitals, but when their medical malpractice rates went up to $200K per year, 2 neurosurgeons moved out of state and 2 retired, leaving 1 neurosurgeon to cover 2 hospitals. So if there was a major auto accident with two victims, one got shipped out on the meatwagon helicopter. Since the neurosurgeon could not be on call every night, if you got in a car accident on Tuesday, the meatwagon helicopter awaited you. Oh, and the OB-Gyns had to relocate part of their practices across the state line, so that when the contractions were 5 minutes apart, you had to drive to Indiana for the delivery.

    Tort Reform Myth: Damage caps reduce the number of lawsuits. Actually what happens is that with pain and suffering capped it does not make a lot of economic sense to pursue some of these claims. But the real things that will bring down the number of malpractice suits would be medical courts and allowing docs to countersue plaintiff attorneys.

    Tort Reform Myth: Medical malpractice verdicts will skyrocket without caps. All I know is that my annual medical malpractice rates were 40% higher in the late 1990s without medical malpractice caps then they are now with medical malpractice caps. I have to assume that the "pain and suffering" caps which were upheld in Ohio during that time frame, significantly reduced the payouts in medical malpractice cases thereby reducing my insurance premiums.

    Tort reform fact: You cannot have a strong 2nd Amendment without a strong 7th Amendment. What a bunch of bull$#!&! These amendments are unrelated. We can have medical courts, just like we have Worker's Compensation and manditory arbitration for securities lawsuits and the Public Utilities Commission for utilities complaints. Congress routinely enacts laws for the greater good to restrict civil litigation to allow for securities firms to raise money for businesses, for workers to be compensated for workplace injuries without bankrupting their employers, for utilities so that they can be free from picky costly litigation so that affordable heat, water and electricity can be enjoyed by all. Obamacare is socialzed medicine. If we want affordable health care for all, we need to have medical courts to adjudicate patient complaints in a fast, fair and efficient way. Makes more sense than the corrupt, inefficient, abnormally prolonged medical malpractice system that we currently have.

  2. Welcome back, Dr. Cox.

    While I certainly appreciate your readership, you comments are both circular and repetitive. What they lack in logic is certainly made up with name-calling and (now) profanity. Such comments do little to further any rational dialogue and are not welcome.

    You and I (and others at the Legal Examiner) have sparred from time-to-time, most recently in response to my post, Tort Reform and Constitutional Protections: Picking and Choosing.

    I've responded to your circular arguments before, but for new readers, I'll do so briefly again. (You've got a lot going on here, so I'll try to keep my responses brief.)

    (1) The money. Doc, with you, it's always about the money.

    (2) We will never know if justice was done. Actually, doc, we will. That's how the system works. That's why we have the civil justice system. That's why we have a discovery process for plaintiffs and defendants alike. That's why we have juries. Justice was done. That you do not like the decision does not make it a wrong one.

    (3) Frivolous lawsuit straw man. It's always got to be about you, doesn't it, doc? You said, "but I never said Damage Caps would decrease frivolous suits". Doc, believe it or not, but I wasn't writing about you. Rep. Burlison and the AMA did say caps would prevent frivolous lawsuits. And they're wrong. There's no straw man here. Only facts.

    (4) The British Rule. I've written about the English Rule before (just Google "Brett Emison English Rule", you'll find it). It's a bad idea for many reasons - the biggest reason for you, doc, is that defendants often end up paying more because defendants ALSO pay when they lose. That's thy the Florida Medical Association lobbied to have the British Rule repealed just 5 years after lobbying to have it enacted.

    But, if you're a fan, then I have good news. Missouri already provides for costs to the losing party and even legal fees when the case is frivolous. Mo. Rev. Stat. 514.205 says the Court shall award costs, reasonable expenses, and attorney fees in frivolous cases. Mo. Supreme Court Rule 55.03(d) permits the recovery of costs and attorney's fees as sanctions for bringing a frivolous claim or raising a frivolous defense.

    (5) Defensive Medicine. So, tell me, doctor: Are these doctors adhering to the standard of care or committing insurance/Medicare/Medicaid fraud? Either the tests are warranted or they are fraudulent.

    (6) Docs fleeing the state. Your anecdote aside, the numbers don't lie. You're supposed to be scientist - you should appreciate that. Docs weren't fleeing Missouri before tort "reform" in 2005 and they didn't come back in droves afterwards. Didn't happen in Texas either.

    (7) Caps reduce legitimate lawsuits. Doc, you wrote, "Actually what happens is that with pain and suffering capped it does not make a lot of economic sense to pursue some of these claims."

    It's a New Year's miracle. You and I agree on something. Caps don't prevent frivolous claims, but they do prevent legitimate ones.

    (8) Malpractice rates. Doc, if your insurance rates are too high, that's something you should take up with your insurance company. But keep your hands off the constitution.

    (9) 2nd Amendment. We must preserve and protect each fundamental right if we are to protect any of them. Constitutional rights are the cornerstone of our society and, as Missouri's founders explicitly said, should remain inviolate.

    The right to trial by jury - whether under Missouri's 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.

    Happy New Year, Dr. Cox.

  3. This kind of nonsense needs to be questioned and put to the test of constitutional logic. Bravo for saying it like it is Brett.

  4. Gravatar for jc

    Brett: In answer to your rebuttal:

    1. The money - - with you Brett, and plaintiff lawyers like you it is always about the contingency fees.

    2. 85% of cases that go to trial are won by the defendant docs. So I have to assume that 85% of the time a frivolous lawsuit was filed. Had to be frivolous because the plaintiff lost - -right. So Brett, justice was done in those 85% of cases right?

    3. The British rule. Brett, you are distorting what happened in Florida. What happened is that when the doc lost the medical malpractice case, the judges always ordered the doc to pay attorney fees and court costs. When the plaintiff lost the medical malpractice suit, the judges rarely ordered the plaintiff to pay the defendants attorney fees and court costs. When the judges did, the plaintiff filed for bankruptsy and the defendant docs got nothing. This unbalanced approach to the law is why the Florida medical association wanted repeal of the British rule. This could be solved by recognizing that the plaintiff and his attorney are really partners in the medical malpractice process. As such, both parterns are liable for defendant legal costs and court costs should the plaintiffs lose the case. In addition, judges should not have the right to prevent payment of these legal damages to the winning side. Finally, current legal sanctions against frivolous medical malpractice litigation are rarely enforced. My own case, which was a blatant frivolous case did not result in Judge Jeff Reed granting sanctions, even though he threw the case out after 6 years of frivolous litigation.

    5. Defensive medicine: The tests are warrented because they protect the doctors should there be a medical malpractice suit so the docs can defend themselves.

    Doc fleeing the state: Well Brett, I am on the ground and I see what happens when medical malpractice rates get out of hand. Two good family practicioners used to deliver 60 babies a year. Well their malpractice rates were $60,000 greater than they would be if they did not deliver babies. The most insurance would pay them for a delivery was $1800. So they stopped doing deliveries because they paid $1,000/delivery and only got $800 for 9 months of prenatal care and the delivery. Those are the things I see.

    7. Yes, Brett, you and I do agree that caps on pain and suffering do not make a lot of economic sense to pursue some legitimate malpractice claims. But if plaintiff attorney are so pure and altruistic as you feel that they are, why don't these good souls just take these cases for the sake of "justice for all" so that the plaintiff will truly learn what happened in the medical misadventure?

    8. Brett, you are living in a dream world if you do not think the state legal environment does not affect medical malpractice rates. My colleague in Texas pays a third of what I pay in Ohio in medical malpractice insurance rates because Texas's malpractice laws, which are the best in the country.

    9. Seventh Amendment- - I had a stock broker steal money out of my brokerage account. I could not sue the brokerage in state court, I had to go thru arbitration. We have worker compensation to adjudicate work place injuries. So the 7th amendment is being violated in securities litigation and worker's comp cases, so why not have medical courts decide medical malpractice cases?

    Well the response from the trial lawyers is that it is not fair to have medical professionals evaluate these cases. My response is that it is not fair to have judges, who are lawyers and favor lawyers, adjudicate medical malpractice cases. Judges are uniquely incompetent to handle these cases because they have to rely on plaintiff attorney contributions to get re-elected. So the cases drag on and on and on as the judges bend over backwards to favor the plaintiff. It took 6 years for Judge Reed to throw out my frivolous case. A medical court could have disposed of this case in 6 months!

    Finally, I take offense to your reference that I used profanity on this blog. I said Bull$#@%, which is my way of saying bull feathers.

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