In 2012, the Missouri Supreme Court found that Section 538.210 RSMo., which capped non-economic damages in medical malpractice cases, violated the right to a jury trial guaranteed under the Missouri Constitution. Earlier this month, medical professionals attended a full day of hearings in Jefferson City, seeking to convince the Missouri House of Representatives to reinstate a $350,000 cap on non-economic damages in medical malpractice cases. Non-economic damages include pain, suffering, mental anguish, inconvenience, physical impairment, disfigurement, loss of capacity to enjoy life, and loss of consortium. Tort reform proponents claim that without a cap, medical malpractice premiums will rise and doctors will not want to practice in Missouri. The House evidently bought the arguments, voting 94-61 to pass HB 1173. The bill will now be considered in the Missouri Senate.

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. Recently, a doctor and a professor teamed up to pen an article entitled Five Myths of Medical Malpractice, which was published in the Chest journal, which is a peer-reviewed publication of the American College of Chest Physicians. In their article, certain tort-reform positions were debunked – including 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.

Last week, 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.”

More state courts are beginning to come in line with Missouri and Florida. We urge our clients and those in our communities to get involved. Tell your state and federal representatives that you are against so-called “tort reform” measures that make it harder for individuals to file medical malpractice claims or that punish those that have been injured or killed by medical negligence.[/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]