Tort reform stalls in Missouri Senate

After Supreme Court rejected the 2005 limits, lawmakers resume debate over damage caps

Missouri senators spent more than six hours last week debating the need for limiting the damages someone can win in a malpractice lawsuit. But they didn’t reach an answer.

And it’s not certain when the chamber might resume that debate.

“I told them last night that I’m not willing to bring it up until there’s some information brought to me about an agreement,” Floor Leader Ron Richard, R-Joplin, said Thursday.

Senate President Pro Tem Tom Dempsey, R-St. Charles, said: “I know that Sen. Richard and I still would very much like to move forward on a tort reform bill.”

The debate isn’t new.

In 1986, Missouri lawmakers agreed that, in cases involving malpractice claims, there should be a $350,000 limit on the non-economic damages awarded to plaintiffs winning their case — but it included an annual inflation factor.

After a 2002 Supreme Court ruling increased the number of times a doctor could be sued by the same patient, the medical community grew increasingly concerned that rising caps were causing insurance premiums to explode, forcing doctors to stop practicing or to move to other states.

In 2005, the Republican-led legislature changed the laws, resetting the damages cap at $350,000 with no inflation factor.

In late 2006, after Deborah Watts’ son was born with brain damage, she sued Springfield-based Cox Medical Centers for malpractice and, eventually, won. The jury set her economic damages — which don’t have caps and are based on present and estimated future medical costs — at $3.371 million.

Jurors also awarded her $1.45 million in non-economic damages to pay for things like pain and suffering, but Circuit Judge Dan. J. Conklin reduced that to $350,000 as required by the 2005 law.

The Missouri Supreme Court held in 2012 that the cap violated the constitutional right to have a jury decide the damages — a right rooted in English common law.

The Senate debate included a House-passed bill that would exclude health care claims from the “English common law” protections and a separate, proposed constitutional amendment.

“If voters approve, it would say that the Legislature clearly has the authority to institute non-economic damage caps,” Sen. Brad Lager, R-Savannah, explained.

As some senators talked in the Senate chambers, others were negotiating with representatives of the medical community and the trial attorneys.

“I just feel sad that we weren’t able to come to a compromise that would work for everyone,” Sen. Rob Schaaf, R-St. Joseph and a family physician, told the News Tribune.

Sen. Jolie Justus, D-Kansas City and an attorney, told reporters: “There’s just some fundamental differences on the amount of the cap. As you might imagine, there’s a lot of different folks on the side of the health care providers — and each of them have a slightly different interest, so it’s harder to get them to the same place that a group of trial lawyers can get to.”

Schaaf said he didn’t see that much disagreement among the health care providers.

“Right now, the trial attorneys are in the driver’s seat,” he said. “They make a lot of money off of big judgments.

“So, right now, having no cap at all on non-economic damages for personal injury suits them well — and getting them to sit down and give up some of that is pretty tough.”

Springfield lawyer Steve Garner, president of the Missouri Association of Trial Attorneys, said in an email: “Juries are good enough to try criminal cases and determine whether somebody goes to jail or somebody dies, but we don’t trust them to assess monetary penalties or monetary awards against doctors?

“That doesn’t make sense.”

But Jeffrey Howell, the state Medical Association’s lobbyist and general counsel, said history shows a need for “a reasonable cap on subjective ‘pain and suffering’ damages.”

In a memo to the House in late-February, as they debated the proposed law now in the Senate, Howell wrote the reduced damages cap stabilized the health care industry.

“Almost immediately the number of lawsuits dropped,” he wrote, “new insurers entered the market, and premium rates fell. And, physicians returned to Missouri.

“In the three years leading up to tort reform, Missouri lost 225 physicians to the lawsuit crisis.

“From the first full year of reform to 2013, more than 1,000 additional physicians began providing care within our borders.”

And the providers still have experienced a $27 million decrease in insurance premiums paid, he said.

Brent Butler, the Missouri Insurance Coalition’s government affairs director, said part of the problem is the insurance industry’s costs in paying malpractice damage awards.

After the 2002 court ruling increased the number of times a doctor could be sued, rates went up and fewer companies wrote policies.

“Since 2005, insurers have returned to the market and rates have gone down, in part due to the increased competition,” Butler said.

“Without the reinstatement of reasonable caps, the Watts case will lead to this cycle repeating – insurers will leave the market and rates will go up.”

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