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Novel bill attempts to restore med mal caps

Bill weaves complex path through constitutional history

Scott Lauck//February 11, 2013//

Novel bill attempts to restore med mal caps

Bill weaves complex path through constitutional history

Scott Lauck//February 11, 2013//

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Sen. Dan Brown, R-Rolla, on the Senate floor on Tuesday. Brown is sponsoring a bill that attempts to reinstate the noneconomic damage cap in medical malpractice cases. Photo by Scott Lauck

Can you change a constitutional right without actually amending the constitution? Sponsors of a bill under consideration in a Missouri Senate committee are trying to find out.

When the Missouri Supreme Court last year struck down the state’s cap on noneconomic damages in medical malpractice lawsuits, it presented Republican lawmakers with a difficult problem. The damage cap was a signature component of their 2005 effort to overhaul the state’s tort system, and doctors who now fear their malpractice rates will skyrocket are clamoring for change.

But the Supreme Court’s ruling in Watts v. Cox Medical Center found that the cap infringed on the fundamental right of Missourians to have a trial by jury, as guaranteed by the state constitution. Reinstating the cap would appear to require a constitutional amendment.

It still might. But lawmakers are also considering a few other avenues, including a particularly creative move that attempts to reject a part of the common law in use for at least the last 406 years and replace it with a new statutory cause of action.

To unpack that legally complex concept, one has to go back to the year 1820, when Missouri’s constitution was first adopted. The basis of most of the constitution, like much of the American legal system, is the common law of England “made prior to the fourth year of the reign of James the First” — that is, in 1607.

The state constitution guarantees “the right of trial by jury as heretofore enjoyed shall remain inviolate.” The Supreme Court held in Watts that, because that pre-existing common law allowed people to sue for medical negligence damages when the constitution was adopted, the Legislature couldn’t subsequently alter that right by reducing the amounts that juries choose to award.

The Supreme Court has separately held, however, that the Legislature is free to set limits on jury awards in causes of action created by statute after the constitution’s adoption. In fact, in a strikingly similar case decided just months before Watts, the court upheld the constitutionality of noneconomic damage caps in wrongful death suits. Wrongful death, the court reasoned in Sanders v. Ahmed, is a cause of action created by statute in 1855, so it doesn’t necessarily come with a right to a trial. The year 1820, the court said, is the “cutoff.”

Sen. Dan Brown, R-Rolla, seizes on that distinction, saying in an interview last week that the court “left the door open” for a bill like his. The bill “expressly excludes” England’s common law regarding “claims arising out of the rendering of or failure to render health care services by a health care provider.”

The bill goes on to create a new statutory cause of action that does pretty much the same thing that the common law already does — except, of course, that the $350,000 noneconomic damage cap would presumably remain in force.

Last week’s hearing in Jefferson City featured a long line of doctors, many of them wearing white lab coats, who testified that the cap must come back if malpractice insurance rates are to remain reasonable. None of them, however, questioned if such a law would fare any better in the courts than the cap itself did.

Even a representative of the Missouri Association of Trial Attorneys, Ken Vuylsteke, declined to offer an opinion on its constitutionality.

“Who knows?” he said. “I’m not on the Supreme Court, and they’re the ones who’ll have to answer that question.”

(Vuylsteke did argue, however, that lawmakers don’t need to reinstate the cap. Many of the other reforms enacted in 2005 remain in place and will continue to hold down insurance rates, he said.)

But some members of the Senate Judiciary Committee — even those who support the concept — are dubious. The committee’s chairman, Sen. Bob Dixon, R-Springfield, though not a lawyer, was quick to note that a cap on medical negligence damages is forbidden while those for wrongful death are allowed, based solely on when the cause of action became available.

“Doesn’t that seem inconsistent?” Dixon asked Vuylsteke.

The lawyer agreed. “I’d be very supportive if you’d sponsor a bill that would take off the caps on wrongful death,” Vuylsteke quipped.

Dixon laughed. “I’m sure you would,” he said.

Following the hearing, Sen. Rob Schaaf, R-St. Joseph and a medical doctor who sits on the Judiciary Committee, said that while he supports the bill and fully intends to vote for it, he also doubts that it would ultimately pass muster.

“We can’t change the history,” he said.

Sen. Jolie Justus, D-Kansas City and a lawyer-member of the committee, called the bill a “novel concept.” She said Supreme Court’s decision made it clear that the issue is constitutional, not statutory, and that if the bill went into law it would almost certainly wind up in court. But, she said, that would be a fascinating case.

“It’s sort of a law school kind of question,” she said.

Michael Wolff, a former Supreme Court judge and now a law professor at Saint Louis University, said he didn’t think the proposed law would have “any effect at all” on how a court would analyze the right to a jury trial. Wolff retired from the court in 2011, but he wrote several cases during his judicial career involving the right to a jury trial — including a 2010 case that formed the basis for the Watts ruling.

“They’ve got an uphill climb as far as the constitution’s concerned,” he said.

It’s much easier to change a statute than to amend the constitution, but it’s also a lot easier to challenge that statute in court. With that in mind, Sen. Brad Lager, R-Savannah, is offering a resolution that, with voter approval, would amend the state constitution so that “in all civil cases an award of noneconomic damages may be limited as prescribed by law.” The resolution is scheduled for a hearing today.

Lager said a statutory amendment won’t give medical providers the certainty they need.

“I believe the right fix is a constitutional fix,” he said.

The bill is SB105.

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