Missouri GOP looks to impose caps on malpractice cases

Missouri 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.

Republicans claim a supermajority when the General Assembly meets Wednesday to start the 2013 session, and 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.

“The judiciary, like a bunch of termites, has gone to work undermining that necessary tort reform,” said Republican Lt. Gov. Peter Kinder. “So we’re going to have to go back and do the heavy lifting all over again.”

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

The Missouri Supreme Court ruled 4-3 that 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 constitutional amendments and suggested legislation that would eliminate the common-law right to file a lawsuit over health care services while replacing it with a statutory right to sue.

Doctors’ insurance premiums and health care costs are likely to increase without a limit on liability, said Jeff Howell, the Missouri Medical Association’s director of government relations and general counsel.

“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 of defensive medicine, they worry more about getting sued, and that increases the overall cost of health care.”

Opponents of the cap say the right to a jury trial is the linchpin for all basic liberties.

“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, 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.”