Court knocks down award in case against nursing home

The son of a woman who died after breaking her hip at a nursing home is at the heart of a battle over how much the state constitution protects jury verdicts.

The case’s ultimate outcome may help determine how and when medical malpractice and health care-related wrongful death claims in Missouri are treated differently.

A Jackson County jury in July awarded $1.5 million to William Dycus in his wrongful death claim against Jefferson Health Care Inc.

A couple of weeks later, the Missouri Supreme Court issued its ruling in Watts v. Cox Medical Center, holding that a state law capping awards for noneconomic damages in medical malpractice cases at $350,000 was unconstitutional and violated a plaintiff’s “inviolate” right to a jury trial.

At that point, the jury trial in the Dycus case was completed, but the judge hadn’t issued a final judgment. So, while the defendant, as is common, asked the judge to knock down the award based on the state damages cap, the plaintiff, citing the Watts decision, argued the jury’s award should stand.

The defendant claimed in a post-trial motion to Judge Robert Schieber that Watts had no bearing on the case because Dycus brought the case as a wrongful death claim, not a medical malpractice claim.

Earlier this year, the state Supreme Court had upheld the damages cap in Sanders v. Ahmed. In that ruling, the court reasoned that there is a distinction between causes of action provided for by common law when the Missouri Constitution was adopted in 1820 and those created later by statute.  While medical malpractice was already a recognized claim in 1820, a law allowing for wrongful death litigation wasn’t on the books until 1855.

For that reason, wrongful death damages can be capped, the high court held, reasoning that the Legislature can limit the available recovery for anything it creates.

But Dycus’ attorneys argued to Judge Schieber that the Sanders ruling is no longer good law because the Watts decision came later and threw out the statute that includes the cap for wrongful death claims arising from health care providers’ actions or inactions.

Jefferson Health Care attorneys, however, countered that the high court didn’t address the Sanders ruling in the Watts analysis and hence must have meant for it to stand. They argued that medical malpractice and wrongful death are distinct causes of action and it’s reasonable for the state to treat them differently. They also said the Supreme Court opinion’s precise language made clear that it didn’t hold the entire statute, in all situations, was void.

“The Court’s employment of the phrase ‘to the extent’ demonstrates that the Watts’ Court did not intend to vitiate Section 538.210 as unconstitutional en toto, but rather it was only holding that the statute was unconstitutional as applied to a common law action to which the right to jury trial existed as of 1820,” the defense argued in its post-trial motion to amend the judgment, filed by attorney Ted McDonald and others at Adam & McDonald.

But the plaintiff’s lawyers disagreed. They argued if that interpretation stands, then it violates the federal equal protection clause by treating two similarly situated groups of plaintiffs differently. If there’s any governmental interest to be gained, the plaintiff argued, it should be the reverse.

“There is no rational basis for limiting malpractice damages when the patient dies while allowing for unlimited damages when the plaintiff survives,” plaintiff’s lawyers from Wagstaff & Cartmell and Kuhlman & Lucas claimed in their post-trial brief.

Schieber ultimately sided with the defense, knocking Dycus’ award down to $350,000 in a three-page order that offers little analysis other than to say he is bound by the precedent set in the Sanders opinion.

So if a plaintiff’s lawyer has a case against a doctor, is it better to pursue just the medical malpractice claim, even if the person ultimately died?

Defense attorney McDonald said that even if plaintiffs sought to recover for their loved one’s pain and suffering before death, he would argue that still falls under the cap because survivorship claims by a person’s estate came about after the 1820 constitution.

Not surprisingly, plaintiff’s attorney Brad Kuhlman has a different viewpoint. He views a survivorship claim as a derivative of common-law personal injury claims that predated the constitution and hence couldn’t be capped.

Schieber’s ruling is likely not the last word on the issue. Plaintiff’s lawyers on Dec. 6 filed notice that they intend to take their appeal directly to the state Supreme Court — and the bench has a different makeup than it did when it ruled on Sanders.

Kuhlman, of Kuhlman & Lucas, is handling the appeal. Kuhlman said he also expects legislators to rework the statute when they reconvene next month and would advise plaintiffs’ attorneys to file any new claims against health care providers soon.

“Our view is that the statute has basically been erased from the books,” he said.

The case is Dycus v. Jefferson Health Care Inc., 0816-CV34209.