SOURCE: Missouri Independent
Limits on the amount of damages someone can recover in medical malpractice cases for pain and suffering do not violate Missouri’s constitution, the state Supreme Court ruled Thursday.
In a 5-1 decision, the court determined that the legislature had the authority to enact a 2015 law limiting non-economic damages to $400,000 for personal injury and $700,000 for catastrophic personal injury.
The court in 2012 deemed a similar law imposing a flat $350,000 limit on noneconomic damages in medical malpractice cases unconstitutional. It said the limits violated the right to a jury trial that had existed under common law when Missouri’s first constitution was adopted in 1820.
But in approving the 2015 caps, the legislature repealed the common-law medical malpractice cause of action and replaced it with a statutory medical negligence action.
The law was approved by the Republican-dominated House and Senate with only a handful of votes in opposition and signed by then-Gov. Jay Nixon, a Democrat.
“Because a medical negligence action is a statutorily created cause of action, the General Assembly had the legislative authority to enact statutory non-economic damage caps,” the decision said.
Brett Emison, past president of the Missouri Association of Trial Attorneys, said the court ignored past precedent to permit the legislature to “erase centuries-old common law and replace it with a statute that fundamentally infringes on the right to trial as it was provided in Missouri’s constitution in 1820.”
The court’s ruling puts all constitutional rights in jeopardy, Emison said, conceivably granting permission for the state legislature to abolish common law protections for things like Second Amendment gun rights or religious freedom protections.
“This sets a dangerous precedent for stripping away the constitutional rights of all Missourians,” Emison said.
The case stemmed from a 2017 lawsuit filed by Maria del Carmen Ordinola Valaquez against multiple physicians and University Physician Associates.
“In the long run, Congress should take action to establish targeted liability protections for our frontline health professionals for disasters or public emergencies so we don’t need to wait until the next disaster occurs to see if they will act,” Atchinson said.
“In addition, federal liability standards for the provision of telemedicine services between states are essential if we are to create a truly functional telemedicine system nationwide. We are working with stakeholders and interested legislators to determine the most effective way to achieve these goals.”
Of course, insurance is a cyclical market.
While the industry expects loss ratios in 2020 and 2021, Cook said the market will eventually face a correction and plateau or soften. This is already happening to some extent.
“For example, medical malpractice rate increases for miscellaneous or allied medical facilities have plateaued for some types of exposures, while they are more rapidly rising for hospitals and senior care facilities,” Cook said.
And while U.S. courtrooms have been closed for extended periods, the progress of cases and claims has been delayed.
“Our assumption is that when litigation activity returns, claim values are likely to increase once again,” Marmorek said.
“It is unknown to what extent the ‘halo effect’ around health care providers who have worked tirelessly through the pandemic will mitigate this on medical malpractice claims specifically.”
Berkshire Hathaway Specialty is optimistic that the medical liability segment is headed toward a more stable and secure marketplace.
“But the soft market cycle that lasted more than a decade with irrational rate decreases that created a string of unprofitable years is not corrected in one year,” Carroll said.
“Underwriting discipline needs to be more consistent, data-driven and quicker to course-correct in the face of adverse development.”