Horn Aylward & Bandy, Kansas City
For a lawyer who has won three of the most important cases in the last 30 years on the law of medical malpractice, Tim Aylward is rather ambivalent about his role.
For one thing, he said, he never set out to argue the series of cases that culminated in 2021 with a ruling that the Missouri legislature can lawfully set limits on the value of damages available to victims of medical negligence.
“There’s no grand design that I’d be the go-to guy on anything,” he said. “It’s just kind of the way it happened.”
For another, as a practicing trial lawyer he worries that his appellate victories could pave the way for lawmakers to set ever stricter limits on the kinds of cases that can be tried before juries.
“I’m a big believer in jury trials, so that of course concerns me,” he said.
Aylward was the prevailing lawyer in last July’s Ordinola Velazquez v. University Physician Associates, in which the Missouri Supreme Court upheld a 2015 law that reinstated a cap on the noneconomic damages that plaintiffs can recover in medical malpractice lawsuits.
Since 1986, Missouri has had some form of a noneconomic damage cap for medical malpractice causes of action, which proponent say bring predictability to settlement negotiations and keep insurance premiums down. Plaintiffs’ lawyers, however, have long argued that such caps violate the Missouri Constitution, which guarantees that the right of trial by jury “shall remain inviolate.”
In 1992, Aylward defeated that argument in Adams by and through Adams v. Children’s Mercy Hospital, which affirmed the constitutionality of the cap that was in place at the time. Aylward said he took the case to the Supreme Court because he’d lost it at trial, resulting in a massive $20 million verdict.
Twenty years later Aylward was hired by an insurer to argue Sanders v. Ahmed, which resulted in a 2012 ruling that lawmakers could enforce damage caps in medical negligence cases involving wrongful death, which is a cause of action created by statute.
Later that year, however, the Supreme Court issued Watts v. Cox Medical Centers, which overruled Adams and threw out a stricter cap that lawmakers had passed in 2005. The court’s majority said the legislature could not set limits on common-law claims that were available when the state constitution was first adopted in 1820, including medical negligence.
Watts, which Aylward didn’t argue, prompted lawmakers to attempt a new tactic: removing medical malpractice from the common law, which the Supreme Court had said they couldn’t limit, and replacing it with a statutory cause of action, for which the court had said limits were permissible.
Aylward once again found himself on the wrong end of a verdict, when a Jackson County jury awarded more than $1 million verdict to a woman who underwent a botched tubal ligation. Most of the verdict was for past and future noneconomic damages.
It was a difficult appellate argument, Aylward said. For one thing, the Supreme Court held the May 2021 argument remotely due to the COVID-19 pandemic, and the lawyers found themselves arguing to an unusually silent screen. None of the judges asked any questions, leaving the lawyers with no sense of how the case would come out.
The end result, however, was a 5-1 ruling upholding the cap, which had reduced the plaintiff’s award to about $750,000. The court’s majority said lawmakers were free to repeal what had been a common-law cause of action and replace it with one based in statute.
Aylward remains amazed that he won.
“I really thought I would lose that appeal,” he said. “I thought the court wouldn’t accept that you could repeal a constitutional right by a legislative bill.”