KHI News Service

Missouri justices overturn cap on ‘pain and suffering’

No decision yet on a similar case before the Kansas Supreme Court

By Dave Ranney | August 01, 2012

The Missouri Supreme Court has struck down that state’s cap on the non-economic damages that can be awarded by a jury in a medical malpractice case.

The Kansas Supreme Court has had the same issue before it for more than three years in the case of Miller v. Johnson.

In a 4-3 decision released Tuesday, the Missouri court ruled that the state's limits on the amounts juries can award someone injured from medical malpractice violated the constitutional right to a jury trial.

“The Missouri case could not be more on point – right down the line - with the arguments we made in the Miller case,” said Bill Skepnek, a Lawrence attorney representing Amy Miller, a Eudora woman whose surgeon mistakenly removed her right ovary instead of her left. Miller later had to have her left ovary also removed.

Amy Miller's doctor wrongly removed one of her ovaries when she was age 28. Miller is challenging the constitutionality of a law that caps at $250,000 the amount a medical malpractice victim can be awarded for pain and suffering. Doctors, hospitals and others have been awaiting the decision of the Kansas Supreme Court for more than three years.

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Missouri Court Ruling

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A Douglas County jury awarded Miller $760,000 in total damages: $360,000 for past and future medical expenses, $400,000 for non-economic losses, better known as ‘pain and suffering.’

The district court judge who initially heard the Miller case cut the pain-and-suffering award from $400,000 to $250,000 because that was the most allowed under Kansas law.

Miller’s attorneys argued that the cap on damages abridged Miller’s right to have her case decided by a jury, noting that Article 5 in the Kansas Bill of Rights, which was approved by the state's founders in 1859, clearly states: "The right of trial by jury shall be inviolate."

In Missouri, the state constitution, adopted in 1820, has a similar stipulation: “…the right of trial by jury as heretofore enjoyed shall remain inviolate.”

In the Missouri case, Watts v. Cox Medical Center, a woman whose son was born with severe brain injuries sued the Springfield hospital and its medical clinic, alleging negligence.

A jury awarded the mother, Deborah Watts, $3.37 million for past and future medical damages, $1.45 million for pain and suffering.

The pain-and-suffering award was later reduced to $350,000 because that was the most allowed by Missouri law.

In its decision Tuesday, the Missouri Supreme Court ruled that state’s cap on non-economic damages violated Watt’s right to a jury trial and was thus unconstitutional.

In part, the ruling read: “Statutory damage caps were not permissible when the (Missouri) constitution was adopted in 1820 and, therefore, remain impermissible. The right to trial by jury cannot ‘remain inviolate’ when an injured party is deprived of the jury’s constitutionally assigned role of determining damages according to the particular facts of the case.”

The ruling was limited to jury awards in medical malpractice cases.

The Missouri State Medical Association condemned the decision, accusing the court of eviscerating “one of the nation’s most successful tort reform laws,” a reference to the $350,000 cap on pain and suffering.

"The ruling is an immeasurable disappointment," Dr. Stephen Slocum, the association's president, said in a prepared statement.” "It turns back the clock to a time when a medical lawsuit crisis had pushed Missouri doctors to the breaking point. Scores of physicians moved away, and access to health care was threatened in every corner of the state."

The cap, Slocum said, had allowed the state to stabilized its once-erratic insurance market which, in turn, drew more physicians to Missouri and improved access to care.

The Missouri medical association urged the state’s governor and General Assembly to “make restoration of the cap their highest legislative priority in 2013.”

Kansas Medical Society Executive Director Jerry Slaughter has said his organization would launch a similar campaign, if the Kansas Supreme Court overturns the Kansas cap on non-economic damages.

Attempts to reach Slaughter for comment Wednesday were unsuccessful.

The Kansas Supreme Court docketed the Miller case in April 2009, first hearing oral arguments in October 2009. It held a second round of oral arguments in February 2011, about six months after the death of then-Chief Justice Robert Davis, whom many court observers assumed had agreed to write the court majority opinion. The Kansas law also caps pain-and-suffering awards in personal injury cases not stemming from medical malpractice.

Typically, most cases heard by the court are decided within four to six months. The Miller case has been on the court’s docket for more than three and a half years.

The court’s deliberations are confidential, so it’s anyone’s best guess as to what might be complicating or delaying a decision.

“I think there’s a good chance that the (Kansas) justices will be reading the Missouri decision,” said Lee Smithyman, an Overland Park attorney and president of the Kansas Bar Association. “Now, what effect that will have? I have no idea. There’s no way to know.”

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