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Home / Capitol Report / Legislative Preview: Med mal caps, criminal code overhaul return this term

Legislative Preview: Med mal caps, criminal code overhaul return this term

Missouri lawmakers are already making a renewed effort to reinstate a cap on noneconomic damages on medical malpractice actions. But the roadblocks that kept the issue from gaining traction last year haven’t gone away.

The Legislature returns to the Capitol next Wednesday for the 2014 session. While some issues, such as proposed changes to the Nonpartisan Court Plan, have gone dormant, other issues are just the latest in years-long efforts.

The move to bring back the damage cap stems from a 2012 Missouri Supreme Court ruling, Watts v. Cox Medical Center, that said the cap infringed on the constitutional right of a trial by jury. The court said common law rights that were in effect when the state constitution was first adopted in 1820, such as for medical negligence, must remain “inviolate.”

Lawmakers responded last session with legislation that attempted to replace the common-law right to sue over health care services with a statutory right to sue. In theory, that would allow the Legislature to reinstate the $350,000 limit that lawmakers approved in 2005, although it’s not clear that such an approach would pass muster with the courts.

Rep. Eric Burlison

Rep. Eric Burlison

The bill’s sponsor, Rep. Eric Burlison, R-Springfield, said the cap is needed to keep down malpractice insurance premiums and prevent doctors from fleeing the state.

“Without these reasonable limits, patients in Missouri are going to continue to pay higher medical bills just to cover the costs of these frivolous lawsuits,” Burlison said in a press release announcing his bill. He didn’t return a message seeking further comment.

Burlison authored similar legislation last year. It passed in the House but foundered in the Senate after a lengthy debate on the floor.

The Missouri Association of Trial Attorneys, which argues that the previous cap did little to influence insurance premiums, remains opposed to the bill. Steve Garner, the association’s president, called the cap “demeaning.”

“We’ve got our legislators telling the state’s citizens that they’re not competent, they’re not smart enough to serve on juries and assess financial damages,” he said.

Other lawmakers are pitching constitutional amendments that would grant lawmakers the explicit power to set a damage cap. Although such a move would clear up any legal uncertainty about the cap, it’s not clear that voters would approve such an amendment. A similar proposal last year didn’t make it out of committee.

Yet another possibility is to leave noneconomic damages uncapped but make them harder to win in the first place. Sen. Bob Dixon, R-Springfield, is the chairman of the Senate Judiciary Committee, which is likely to hear most of the damage cap bills. He has proposed a requirement that noneconomic damages be proven by “clear and convincing” evidence, rather than the current standard of a “preponderance” of the evidence.

“I feel like letting the justice system work within the bounds that have been set is appropriate,” Dixon said. “If we want to change that, rather than selecting certain cases that we don’t like, we’re better off selecting certain parameters and allowing the court system to work and justice to prevail.”

Dixon acknowledged, however, that most of the focus is on reinstating the cap, a proposal backed by a group of health care providers led by the Missouri State Medical Association.

The bill to reinstate the cap is HB1173. The constitutional resolutions are SJR 25 and HJR 45. The standards of evidence bill is SB583.

Criminal code

The effort to revise Missouri’s criminal code could be headed into the home stretch — or back to Square One.

After years of study, the Missouri House approved a major revision to the code during the 2013 session. The bill, however, ran out of time in the Senate.

Senate proponents and officials from The Missouri Bar are confident that the massive bill can clear the Senate during the 2014 session. Dixon said the bill will be among the first his committee addresses.

“I would say that will be our major piece of legislation, and we’re going to try to tackle that early,” Dixon said.

The bill’s major opponent isn’t any particular lawmaker or group, but rather time and complexity.

0517.session101 web“It just needed more time for everyone to think about,” said Sen. Jolie Justus, D-Kansas City, the bill’s Senate sponsor. “I didn’t specifically hear from anyone that they had concerns about anything in particular.”

If the code revision fails to pass this year, the bar, which has backed the effort from the start, would have to educate a new batch of lawmakers after the 2014 elections. More pressing, Justus and the bill’s main backer in the House, Rep. Stanley Cox, R-Sedalia, are in their final terms.

The criminal code overhaul was “by far our largest and most important legislative priority this year.”

Jack Brady, president of The Missouri Bar, said the criminal code overhaul was “by far our largest and most important legislative priority this year.” But he was confident that it would pass, particularly given that the House’s support last year was overwhelming.

“I don’t know of any stakeholder who’s not for this,” Brady said.

The criminal code’s last major reorganization was in 1979. The current effort doesn’t seek to create or remove any crimes but rather to simplify the code and clear up inconsistencies. Among its innovations is to create a new class of felonies, allowing for more gradual transitions between the penalties for each of the five classes.

The bill is SB491.

Juvenile life without parole

Over the last two years, the U.S. Supreme Court and its Missouri counterpart have left state lawmakers with a lingering policy question: What to do with juvenile offenders convicted of the most heinous of murders?

Under current Missouri law, first-degree homicide is punishable by either the death sentence or life in prison without parole. But in 2012, the nation’s high court ruled in Miller v. Alabama that juvenile offenders can’t receive an automatic sentence of life without parole. Coupled with a 2005 ruling that prohibited the death penalty for juvenile offenders, there is no constitutionally applicable penalty for those who are under 18 when they commit first-degree murder.

The need to rewrite Missouri’s statute is clear, but there is little agreement on how to do it. During the 2013 session, lawmakers proposed allowing parole after 50 years, but it proved too controversial to pass.

“For a 15-year-old, that’s the same as life without parole,” said Justus, one of the primary opponents in the Senate. “A lot of folks thought that would just result in more litigation.”

Stone County Prosecutor Matt Selby, president of the Missouri Association of Prosecuting Attorneys, said his association doesn’t support a particular number. But he does think the penalty needs to be higher than that for second-degree murder, which allows parole after a maximum of 30 years.

“All the parties know something needs to be done,” he said.

Dixon, who filed last year’s parole bill, said he’ll file similar legislation this year but doubts that the 50-year proposal will stick.

“There is support for that — a lot of support,” he said. “There’s also a lot of opposition. I’m under no misconception that we’ll be able to get that through as it is.” A likely range, Dixon said, would be parole after serving 35 to 40 years.

The Missouri Supreme Court ruled in July that juvenile defendants whose cases were on direct appeal at the time of the Miller ruling could get new sentencing hearings. But the court declined to say what should be done with inmates whose appeals were already final, leaving the policy decision in the Legislature’s hands.

Selby said he has two murder cases pending in his county that involve defendants under 18 at the time of the crime. He said that until lawmakers act, he doesn’t know what to tell the victims’ families to expect.

“I’m sitting here in that limbo state,” he said.

Other issues:

  • The Missouri State Public Defender System this year is seeking money, not legislation, to address its caseload woes.

Last year, lawmakers appropriated $700,000 to the Office of State Courts Administrator to administer pilot projects in which lower-level cases would be contracted to private attorneys. But OSCA, which is part of the court system, said it created a conflict and declined to take on the project.

Joel Elmer, division director in Kansas City, said the defender system will ask for that unused money as a supplemental budget request, allowing the system to contract out some of its caseload.

Until last year, the defender system had sought to manage its caseload by allowing overworked offices to declare themselves off-limits to new cases. Lawmakers overrode that rule but said defender offices could petition their local courts for relief if the caseload grew too high. Yet no offices have done so, Elmer said; they are waiting for The American Bar Association to issue new standards early this year that would better measure defenders’ workload. Elmer said he doesn’t expect any legislation to stem from the ABA standards.

  • Backers of a measure to change legal protections for whistle-blowers will take another shot. The bill, versions of which have been introduced this year in the House and Senate, would, among other things, require that the activity brought to light by whistle-blowers actually be illegal. The provisions would strip protections for those who report acts they think are wrong but don’t violate the law.

Similar provisions were included in an overhaul of the state’s employment discrimination laws in 2011. The bill passed by wide margins in the House and Senate, but Gov. Jay Nixon vetoed it.

The bills are HB1188 and SB490.