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Our Opinion: Error and trial

Our Opinion: Error and trial

Are caps needed for malpractice awards?

February 27th, 2013 in News

Is a cap on certain damages in medical malpractice cases necessary or desirable?

The issue divides some doctors and lawyers. Arguments may focus on health care, economics, constitutional rights and other concerns.

State legislation now being considered would restore a $350,000 cap on non-economic damages, such as pain and suffering.

A similar cap was part of 2005 law that subsequently was deemed unconstitutional by the Missouri Supreme Court. Judges ruled 4-3 that the cap conflicted with "a common law right."

The 2005 law itself was a limit on a 1986 cap that had been written into state law at $350,000, but was allowed to grow with inflation. The argument for the 2005 law was that the cap had grown so large - $579,000 - raising malpractice insurance premiums too high and causing doctors to leave the state or not come here in the first place.

The 2005 lawsuit reform law also made other changes, including tightening the places where a lawsuit can be filed (many people complained in 2005 it was too easy to file a case in the city of St. Louis, where jury awards seemed to be higher than the rest of the state) and requiring the filing of an "expert opinion" that malpractice actually had occurred before a suit could be filed.

The new proposal is designed to avert the constitutional conflict by replacing a common law right with a statutory right to sue, and return to the 2005 cap, which isn't affected by inflation.

Whether such a replacement is constitutional is an important legal issue the judiciary ultimately may be asked to decide.

Two recent letters staked out opposing positions on health care for Missourians and the economic climate in the state.

Stephen G. Slocum, president of the Missouri State Medical Association, favors the cap. As a result of the 2005 tort reform, he wrote: "The number of lawsuits filed in Missouri dropped substantially, the lawsuit insurance market stabilized, and insurance premiums became affordable again. ... Since the first full year of reform, more than 1,000 additional physicians are providing care within our borders."

Roger Johnson, a member of the Missouri Association of Trial Attorneys, argues doctors have not been fleeing the state since the caps were removed. He cited a New England Journal of Medicine report and wrote "caps do not lower health care costs and actually result in more negative outcomes as doctors are not held accountable for the full cost of medical errors."

The U.S. Constitution is abundantly clear regarding the right to a trial by a jury.

The proposed legislation does not infringe on the right to sue or the right to be compensated for actual damages. The $350,000 cap would apply to non-economic damages resulting from physician error.

The causes and results of physician error may differ significantly. Although $350,000 is a lot of money, is it a fair limit in every case - including cases where a patient's quality of life is affected permanently?

Juries have been known to grant outlandish damage awards. Those disproportionate judgments have introduced unpredictability into the liability insurance.

And, ultimately, caps are proposed in an effort to regain stability.

We understand the initiative.

The jury process is not foolproof, but it establishes a mechanism to decide each case based on its individual merits and the applicable laws.

Beyond that, a trial by jury is a fundamental right that was not a haphazard inclusion in the U.S. Constitution.