On May 7, 2015, Governor Jay Nixon signed Senate Bill 239 into law and reinstated medical malpractice caps in Missouri medical malpractice cases. In 2012, the Missouri Supreme Court declared the caps (instituted in a 2005 tort reform bill) were unconstitutional in all medical malpractice cases, except those for wrongful death, on the grounds that the caps violated a plaintiff’s constitutional right to trial by jury for common law causes of action. In order to address the 2012 Supreme Court decision, Senate Bill 239 provides that medical malpractice lawsuits are now statutory causes of action rather than common law causes of action. Proponents of the bill believe that this modification will allow the law to survive any court challenges to its constitutionality.

Under the new law, noneconomic damages, such as pain and suffering, will be capped at $400,000 in most medical malpractice cases. Measurable economic damages, such as medical costs resulting from the injury and lost wages, continue to remain uncapped. For “catastrophic” cases, defined in the law as injuries which may include paralysis, loss of vision, loss of tow or more limbs and brain injury, the cap would be $700,000. The bill also doubles the existing cap in wrongful death cases from $350,000 to $700,000. The new law will also include a 1.7% annual increase in the caps.

Supporters of the legislation include doctors, hospitals and other health care providers. They have warned that insurance costs could spike, lawsuits will increase and doctors will take their practices elsewhere without caps.

The problem with the bill and with the tort-reformers position is that there is absolutely no proof that medical malpractice premiums are reduced when there are non-economic damages caps. An article entitled Five Myths of Medical Malpractice, which was published in the Chest journal, a peer-reviewed publication of the American College of Chest Physicians, debunked the argument that doctors will move to states with non-economic damage caps. The article concluded that caps on non-economic damages in medical malpractice cases “do little to improve the malpractice system. They do not make health care safer, reduce health care spending, compensate those who are negligently injured, or make the liability system work better.” The authors conclude that the best reform for medical care is to adopt “patient safety initiatives that reduce the frequency and severity of medical mistakes.” The same result was reached in a study from Public Citizen, published in July, 2012, titled Medical Malpractice Payments Sunk to Record Low in 2011.

In 2014, the Florida Supreme Court, in a 5-2 decision that struck down Florida’s cap on non-economic damages in wrongful death cases, reached a similar conclusion. The Florida Supreme Court implied that the public and specifically, medical professionals, had been lied to by tort reform advocates. The Court specifically stated that:

“The statutory cap on wrongful death damages does not bear a rational relationship to the stated purpose that the cap is purported to address, the alleged medical malpractice insurance crisis in Florida.”

The Court continued by stating that the:

“Legislature’s determination that `the increase in medical malpractice liability insurance rates is forcing physicians to practice medicine without professional liability insurance, to leave Florida, to not perform high risk procedures, or to retire early from the practice of medicine’ is unsupported.”

“The argument that “actual and potential jury awards of noneconomic damages (such as pain and suffering) are a key factor (perhaps the most important factor) behind the unavailability and unaffordability of medical malpractice insurance in Florida” is unsupported.”

“[fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][T]he record and available data fail to establish a legitimate relationship between” the cap and lower medical malpractice insurance premiums because insurers do not pass savings onto doctors.

“A number of state courts have expressed concern that without a statutory mandate that insurance companies lower their insurance premiums in response to tort reform, the savings resulting from reforms such as damages caps may simply increase insurance company profits.”

The Florida Supreme Court went on to state that savings from caps have led to huge insurance industry profits, which:

“the insurance industry should pass . onto Florida physicians in the form of reduced malpractice insurance premiums, and it should no longer be necessary to continue punishing those most seriously injured by medical negligence by limiting their non-economic recovery to a fixed, arbitrary amount.”

“Indeed, between the years of 2003 and 2010, four insurance companies [The Doctors Company, Mag Mutual Insurance Company, ProAssurance Corporation, and First Professionals Insurance Company] that offered medical malpractice insurance in Florida cumulatively reported an increase in their net income of more than 4300 percent..”

The Court concluded that “[E]ven if there had been a medical malpractice crisis in Florida at the turn of the century, the current data reflects that it has subsided.. At the present time, the cap on non-economic damages serves no purpose other than to arbitrarily punish the most grievously injured or their surviving family members.”

The new law will take effect on August 28, 2015. Unfortunately for Missouri patients harmed by medical negligence, the legislature and the governor have created a law whereby they will be injured a second time.[/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]