Court Hears Challenge to Missouri Noneconomic Damage Limits

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A lawyer for the family of a woman who died after a heart operation argued on Oct. 21 to the Missouri Supreme Court that state law limiting how much they can receive in damages is unconstitutional.

The case could strike another blow to the state’s medical malpractice laws, which include caps on noneconomic damages enacted by lawmakers in 2005. Those damages are intended to compensate for harm or suffering caused that doesn’t include lost wages, medical costs or other measurable economic damages.

The Supreme Court in a personal injury case in 2012 ruled caps on noneconomic damages unconstitutional, saying the limits violated the right to a jury trial that had existed under common law when Missouri’s first constitution was adopted in 1820. Judges again are weighing the issue in light of a woman’s death after heart surgery in 2011.

At issue is a heart test St. Louis-area cardiologist Dr. Robert Ferrara performed on Shannon Dodson that blocked blood flow in her heart and required emergency surgery. Dodson, 34, died that day.

While a jury awarded Dodson’s husband and children $9 million in noneconomic damages, a trial court ramped that back to $350,000 based on state law in place at that time.

Supreme Court judges during the arguments raised questions about whether it makes sense to only restrict damages in personal injury cases in which the patient survives but not in wrongful death cases.

“We’re trying to decide whether or not the Legislature would have enacted this law as it is now given what we know now,” Judge Laura Denvir Stith said.

Ferrara’s attorney Paul Venker said that it makes sense to have different policies in wrongful death and personal injury suits and argued lawmakers who first enacted the caps intended for some limits to be left in place, even if caps on noneconomic damages for certain types of medical malpractice were struck down.

“The court has found one of those efforts unconstitutional,” Venker said of the 2012 ruling. “The idea of trying to still deal with the medical malpractice insurance crisis was still there, is still there.”

But Dodson attorney Patrick Hagerty said that ruling should apply to all caps on noneconomic damages, not just in personal injury cases.

“It’s inconceivable that we can articulate a basis to say we’re going to decide the limit on damages based solely on whether the person lives or dies,” Hagerty said.

Supreme Court judges did not say when they might rule on the case.

Missouri Gov. Jay Nixon signed a measure this year capping some damage awards in medical malpractices cases, three years after the state’s Supreme Court struck down similar limits as unconstitutional.

Under the bill passed this year, noneconomic damages, such as pain and suffering, would be capped at $400,000 in most medical personal injury cases. Measurable economic damages, such as medical costs resulting from the injury and lost wages, would not be subject to the limits.

For “catastrophic” cases defined in the bill, including paralysis, loss of vision and brain injury, the cap would be $700,000. The bill also doubles the existing cap in wrongful death cases from $350,000 to $700,000.

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