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Imbalance in med mal caps up for review

Appeal comes as new set of damage limits to take effect Aug. 28

Just as a years-long fight over damage caps in medical negligence cases has drawn to a close, a pending Missouri Supreme Court case could stir things up again.

On Tuesday, the Court of Appeals Eastern District transferred an appeal of a $10.8 million verdict that a St. Louis County jury awarded in 2013 for the death of Shannon Dodson during a heart catheterization. The award included $9 million in noneconomic damages, but state law caps such damages at $350,000. Following the trial, Judge Thea A. Sherry cut the award to a total of $2.18 million.

Until a few years ago, that cap would have applied whether the plaintiff’s injuries were fatal or not. But in 2012, the Supreme Court largely threw out Missouri’s medical malpractice damage cap. In a separate ruling, it allowed the cap to remain enforceable in medical malpractice wrongful death cases.

As a result, someone who is injured due to medical negligence can, for now, collect a theoretically unlimited award. Yet the survivors of someone who dies from the same negligence can collect just $350,000 in noneconomic damages, such as pain and suffering or loss of consortium.

The Eastern District panel said the Supreme Court should be the one to iron out that wrinkle of law, if indeed it is one. Responding to the plaintiffs’ arguments, the panel said “wrongful death and medical negligence plaintiffs are treated differently under the noneconomic damage cap,” creating a possible violation of federal and state equal protection guarantees.

“It is not for us to determine whether wrongful death and common law medical negligence plaintiffs are similarly situated, or what level of scrutiny should apply in equal protection analysis,” Judge Philip M. Hess wrote for the panel in transferring the case to the Missouri Supreme Court. Judges Sherri B. Sullivan and Robert M. Clayton concurred.

New law

The appellate case comes just as a bill that attempts to restore the noneconomic damage cap is set to go into effect Aug. 28. The law is a reaction to the 2012 ruling Watts v. Cox Medical Centers, in which the court said the cap violated the Missouri Constitution, which guarantees “the right of trial by jury as heretofore enjoyed shall remain inviolate.” The court said that phrase meant lawmakers could not impose limits on common law causes of action that existed at the time the state constitution was first adopted in 1820.

The cap was a major feature of the Legislature’s 2005 overhaul of the state’s tort laws and was meant, lawmakers said, to prevent excessive litigation that could encourage doctors to flee the state. Attempts to restore the cap failed in 2013 and 2014. This year, however, Senate Democrats supported the bill that sets higher damage limits of $400,000 for most malpractice cases. In catastrophic and wrongful death cases, however, the caps would be $700,000 — a provision that appears to address the concerns in the pending challenge. The amounts would rise by 1.7 percent each year.

To get around the Supreme Court’s declaration that medical negligence is a common-law cause of action, the bill seeks to replace the common-law right to sue over health care services with a statutory right.

The Supreme Court has separately ruled that lawmakers are free to limit causes of action they create by statute, a distinction not only critical to this year’s bill but also key to the pending constitutional challenge.

Just a few months prior to the Watts ruling, the court had explicitly upheld the noneconomic damage cap as applied to wrongful death cases. In Sanders v. Ahmed, the court held that the wrongful death cause of action wasn’t part of the common law but was created by statute in 1855.

The Eastern District on Tuesday rejected arguments that the 2012 Watts ruling had implicitly overruled the slightly earlier Sanders decision. The Supreme Court, of course, could reach a different conclusion, though it seems unlikely to do so. Last year, the court extended Watts’ logic to other areas of the law, ruling that a cap on punitive damages was unconstitutional when applied to common law fraud but enforceable when applied to consumer protection laws.

Uncertain effect

It’s a little early to say how a case that hasn’t been argued might affect a law that hasn’t yet gone into effect, if at all. A ruling in the plaintiffs’ favor likely would directly affect only cases filed before the law changes Aug. 28. But a ruling in the plaintiffs’ favor — particularly one that struck down the wrongful death cap as unconstitutional — might cast doubt on the viability of the new cap. Though the new caps are higher, they still impose damage limits, which the court has indicated are unconstitutional in any amount.

“I don’t take for granted that the law passed this year will withstand judicial scrutiny,” said Sen. Scott Sifton, D-Affton, an attorney at Husch Blackwell who voted in favor of the bill. Sifton said the timing of the new law and the court case could be interesting, but he expected the new law to face its own challenge someday.

Patrick Hagerty of Gray, Ritter & Graham, an attorney for the family, declined to comment on the potential interplay between the revised law and the lawsuit.

“We certainly look forward to having the case in the Supreme Court and to resolving the issue,” he said. Paul Venker of Williams Venker & Sanders, an attorney for the defendants, didn’t return a call seeking comment.

Dodson’s family filed suit in the wake of her death in February 2011 in the emergency room at Mercy Hospital, where she had gone complaining of shortness of breath and was diagnosed with bronchitis. Doctors eventually ordered a heart catheterization, during which she suffered a left main coronary artery dissection. Emergency surgery was unable to save her.

Shannon Dodson was a volunteer for Legal Services of Eastern Missouri; her husband, Jason Dodson, is a managing attorney at LSEM’s family law unit. The verdict in the case was the 15th highest plaintiffs’ win of 2013, as tracked by Missouri Lawyers Weekly.

The case is Dodson et al. v. Mercy Hospitals East Community et al., ED100952.