Medical malpractice caps to return to Supreme Court

The decades-long back and forth between state lawmakers and the Missouri Supreme Court about medical malpractice damages caps is entering its next chapter.

The Court of Appeals Western District on Feb. 16 transferred a case to the high court that could decide the constitutionality of a 2015 law that reinstated a cap on the amount of noneconomic damages that plaintiffs can recover in medical malpractice lawsuits. 

At issue is the unusual way the legislature structured that law. Responding to a 2012 Supreme Court ruling that found a prior cap to be unconstitutional, lawmakers declared that medical malpractice was no longer a common-law cause of action. 

Instead, the right to sue for malpractice is now set out in statute. Whether that gives lawmakers more control over the amount of damages that a jury can award is an open question that the Western District said it had no authority to decide.

“The Missouri Supreme Court has not considered the precise question that [the plaintiff] raises here: whether the legislature may constitutionally limit the damages recoverable on a cause of action which did exist at common law, but which has now been ‘replaced’ by a statutory cause of action,” Judge Alok Ahuja wrote for the appellate court. “The legal effect of the legislature’s rechristening of a common-law cause of action as ‘statutory’ has not previously been decided by the Supreme Court.”

Russell S. Dameron of Watson & Dameron, whose firm represented plaintiff Maria Ordinola Velasquez at trial and on appeal, said the implications of the case go well beyond just the amount that his client would be able to recover.

“Really, it’s no longer even about caps; it’s about the right to trial by jury now, and whether the legislature can willy-nilly wipe out any common-law causes of action that existed when the constitution was adopted and implement its own version,” he said.

Tim Aylward of Horn Aylward & Bandy, who argued for the defendants, didn’t respond to a message seeking comment. 

The underlying case stems from a $1.03 million verdict that a Jackson County jury awarded in 2019 to Ordinola Velasquez, who underwent a botched tubal ligation following the birth of her fourth child. The jury found University Physician Associates and five doctors liable, awarding $30,000 for past medical expenses and $1 million for past and future noneconomic damages.

The verdict triggered the caps set by the 2015 law, which limited typical noneconomic damages to $400,000 and those for catastrophic injuries to $700,000. Judge John Torrence found the caps were constitutional but applied the higher limit, reducing the noneconomic award to an inflation-adjusted $748,828.

Missouri has had some form of medical malpractice damage cap since 1986. The Supreme Court affirmed the constitutionality of the original $350,000 cap in 1992 in Adams by and through Adams v. Children’s Mercy Hospital. (Aylward, the attorney for the doctors in Ordinola Velasquez’s case, successfully argued the 1992 case.)

In 2005, lawmakers tightened the cap by removing its annual inflation adjustment and barring plaintiffs from recovering separate amounts from multiple defendants. The updated cap was a central feature of the Republican-led legislature’s sweeping change to the state’s tort laws.

In Watts v. Cox Medical Center, a landmark 4-3 decision in 2012, the Supreme Court overruled Adams and struck down the tighter cap as unconstitutional. Because the state constitution guarantees that “the right of trial by jury as heretofore enjoyed shall remain inviolate,” the majority said the legislature could not set limits on common-law claims that were available when the constitution was first adopted in 1820, such as for medical negligence.

Since then, a series of Supreme Court cases has divided causes of action into two buckets: those that stem from the common law and therefore cannot be capped; and those created by statute, which the legislature is free to limit. As a result, limits on punitive damages and fraud claims have been struck down, while caps for wrongful death claims and Merchandising Practices Act cases have survived. 

The 2015 law sought to thread that needle by repealing the common-law cause of action for claims “arising out of the rendering of or failure to render health care services by a health care provider” and replacing it with a statutory cause of action. 

To overcome opposition from Democratic lawmakers and then-Gov. Jay Nixon, the bills drafters made the limits higher than in the prior version. But as Ahuja’s opinion noted, the cause of action itself “appears to be identical” to the one it replaced.

“The ‘new’ cause of action appears to be subject to the same substantive standards, and the same procedural framework, as the earlier common-law action,” he wrote. “Nevertheless, if the damages caps in the current version of [the statute] are viewed as limitations on a statutory cause of action, rather than on a common-law claim, that could have important implications for Ordinola’s constitutional argument.” Judges Thomas H. Newton and Thomas N. Chapman concurred.

The case is Ordinola Velazquez v. Reeves et al., WD83485.