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Missouri House seeks to limit medical liability

Thursday, March 28, 2013 | 5:07 p.m. CDT

JEFFERSON CITY — The Missouri House pushed Thursday to reinstate a cap on certain damages in medical malpractice cases that the state Supreme Court struck down last summer.

Doctors say the cap helps control malpractice insurance premiums and warned that unlimited economic damages for issues such as pain and suffering would harm the availability and affordability of health care in Missouri. Opponents of the damages cap said it prevents juries from determining in each case what an injured person should receive.

Reducing the limit to $350,000 for non-economic damages was a major piece of Missouri Republicans' efforts in 2005 to curb liability lawsuits. Before then, the state had an inflation-adjusted cap of $579,000 for non-economic damages against each defendant for each act of negligence.

But the Missouri Supreme Court ruled in a 4-3 decision in July that the law violated the constitutional right to a jury trial. Because individuals have long had a common-law right to seek damages for medical malpractice claims in Missouri, the court concluded that any limit on damages restricting the jury's fact-finding role would violate the right to a trial by jury.

To get around the ruling, the House legislation would eliminate the common-law right to file a lawsuit over health care services and replace it with a statutory right to sue. The previous non-economic damages cap of $350,000 would remain in place.

Rep. Keith Frederick, an orthopedic surgeon, said the medical malpractice climate is a factor they consider. He said an unintentional error could prompt a jury award that far exceeds a doctor's insurance coverage.

"Physicians are staring down the barrel of that potential lawsuit every day," said Frederick, R-Rolla.

Critics call for the protection of the fundamental right to a jury trial. One lawmaker questioned whether passing a new state law instead of a constitutional amendment would be sufficient to overcome the constitutional problems cited by the Supreme Court.

Rep. Rory Ellinger, who has represented plaintiffs in medical malpractice cases, said such lawsuits often are lengthy and expensive, and the attorney is not paid unless he or she wins. He said doctors win most of the time, and that insurance companies don't like to settle.

Ellinger, D-University City, said it is unjust to limit non-economic damages to $350,000 for someone who has been seriously injured.

"The system is not broken. Everyone has a right to go to court. Don't place a barrier on everyday people who get hurt," he said.

House members approved the legislation 93-62 with 10 Republicans joining all 52 Democrats in opposition. It now moves to the state Senate, where a committee held a public hearing last month about a similar bill.

Missouri's renewed efforts to curb liability in medical malpractice cases comes after the Kansas Supreme Court last fall upheld that state's limit of $250,000 for non-economic damages.

House Speaker Tim Jones said the two state high court rulings have created an incentive for job creation in bordering Kansas instead of in Missouri.

The legislation "addresses what is the true health care crisis in our state, which is the fact that our health care providers in this state are subject to endless and infinite litigation," said Jones, R-Eureka.

Democratic Gov. Jay Nixon has said there needs to be predictability in the insurance market and that he is not "philosophically opposed" to limits.


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