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Court says cap doesn’t apply to $2.5M award against dentist

Scott Lauck//July 14, 2020

Court says cap doesn’t apply to $2.5M award against dentist

Scott Lauck//July 14, 2020

The Court of Appeals Eastern District affirmed a $2.5 million verdict for a woman injured by her dentist, finding the award was not subject to Missouri’s cap on noneconomic damages.

Attorneys for the defendant dentist argued that the award should have been reduced under a 2015 state law that reinstated the statutory cap on noneconomic damages in medical malpractice cases. The Eastern District’s ruling, however, said the cap didn’t apply to an injury that occurred years before the law was changed.

Jamie L. Boock of Rossiter & Boock in St. Louis, an attorney for plaintiff Christina Bojorquez, said he was pleased with the outcome, though not surprised.

“This lady has been waiting a long time to be compensated for what happened to her, and I couldn’t be happier for her today,” Boock said.

Bruce Baty of Bryan Cave Leighton Paisner, an attorney for defendant Dr. Thomas O’Keefe and his practice, didn’t immediately return a message seeking comment.

Bojorquez sued O’Keefe for a tongue laceration she suffered during an October 2012 crown replacement. The suit alleged that O’Keefe struck the side of his patient’s tongue with a dental drill, leaving Bojorquez with a speech impediment.

Bojorquez, a member of the U.S. Navy, was assigned to the National Personnel Records Center in St. Louis at the time of her injury. She had argued that her slurred speech prevented her from returning to work as a revenue investigator for the City of Tucson, Arizona, forcing her to take early retirement, and that it also diminished her quality of life.

Following the January 2019 trial, a St. Louis County jury awarded Bojorquez $500,000 in past noneconomic damages and $2 million in future noneconomic damages. It was the 37th-largest verdict of 2019, as tracked by Missouri Lawyers Media.

Bojorquez’s October 2012 surgery came just months after the Missouri Supreme Court held in Watts v. Cox Medical Centers that the state’s then-$350,000 medical malpractice noneconomic damage cap violated the Missouri Constitution. Because the constitution guarantees “the right of trial by jury as heretofore enjoyed shall remain inviolate,” the court said lawmakers could not impose limits on common law causes of action that existed at the time the state constitution was first adopted in 1820.

Reacting to that ruling, lawmakers in 2015 restored the damage cap by making medical and dental malpractice a statutory cause of action, rather than a matter of common law. The Supreme Court has yet to address the new cap itself, but it has ruled elsewhere that lawmakers are free to set limits on causes of action that are created by statute.

The revised law sets damage limits of $400,000 for most malpractice cases, but that amount rises by each year and stood at $427,901 at the time of Bojorquez’s trial.

The Eastern District said the issue effectively was resolved by a 2010 Supreme Court ruling, Klotz v. St. Anthony’s Medical Center, which involved the same cap the court would go on to strike down two years later. The court said the cap couldn’t be applied to a cause of action that accrued before the effective date of the law without violating the constitutional prohibition on retrospective laws. The previous cap had been passed in 2005 as part of a sweeping overhaul of Missouri’s tort laws.

On appeal, attorneys for O’Keefe argued that the new cap should apply because, after filing an initial suit in 2013, Bojorquez had dismissed and refiled it in 2016, when the new cap was in effect. (Boock said the move was done because he’d had trouble getting a trial date for the initial case.)

Judge Robert M. Clayton wrote that there was no controlling legal authority for such an argument and that it had “no merit.” Chief Judge Robert G. Dowd Jr. and Judge Roy L. Richter, in one of his last rulings before retirement, concurred.

The Eastern District didn’t address the constitutionally of the cap itself or the legislature’s decision to recast medical malpractice as a statutory cause of action. Boock said that question remains, but it wasn’t necessary to resolve in his case.

“We didn’t even go there because we were so confident the cap didn’t apply,” he said.

The case is Bojorquez v. O’Keeffe, ED107858.

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