Statutory Cap on Non-Economic Damages in Wrongful Death Claim Against Medical Provider Found Constitutional

In Missouri, the action for wrongful death is provided by R.S.Mo. §537.080.1, which provides that:

Whenever the death of a person results from any act…or circumstance which, if death had not ensued, would have entitled such person to recover damages in respect thereof, the person or party who…would have been liable had death not ensued shall be liable in an action for damages, notwithstanding the death of the person injured…

In wrongful death actions brought against health care providers, R.S.Mo. §538.210 places the following limit, or “cap”, on the amount of non-economic damages which can be recovered, which may, by statute, be adjusted for inflation:

In any action against a health care provider for damages for personal injury or death arising out of the rendering of or the failure to render health care services, no plaintiff shall recover more than three hundred fifty thousand dollars per occurrence for non-economic damages from any one defendant as defendant is defined in subsection 2 of this section.

The constitutionality of R.S.Mo. §538.210 was recently challenged in Sanders v. Ahmed, M.D., et al., 2012 Mo. LEXIS 88 (Mo. banc April 3, 2012). In Sanders, plaintiff Ronald Sanders obtained a judgment against Iftekhar Ahmed, M.D. and Iftekhar Ahmed, P.A. for the wrongful death of his wife. Sanders alleged Ahmed failed to recognize and properly treat increasing levels of ammonia in his wife’s body, causing Ms. Sanders irreversible brain damage which ultimately caused her death. The jury awarded the following damages:

For past economic damages: $920,745.88
For past non-economic damages: $1,700,000.00
For future non-economic damages: $7,500,000.00
Total damages: $10,120,745.88

Ahmed filed a motion pursuant to §538.210 for the application of the cap on non-economic damages. The parties and court agreed the cap, adjusted for inflation at the time of the trial, was set at $632,603.82 per each of the two defendants. Applying the statutory cap, the court reduced the non-economic damages award from $9.2 million to $1,265,207.64. Sanders filed a motion to amend the judgment, alleging the statutory caps were unconstitutional. The trial court denied the motion, and Sanders appealed the decision. The Missouri Supreme Court accepted review of the case to determine the constitutionality of the statutory cap.

On appeal, Sanders argued the statutory cap (i) violated the Missouri Constitution’s right of trial by jury, and (ii) impermissibly interfered with the judiciary’s performance of its constitutionally assigned power to render judgments in conformity with the jury’s verdict. Article I, section 22(a) of the Missouri Constitution, first adopted in 1820, provides “[t]hat the right of a trial by jury as heretofore enjoyed shall remain inviolate.” The Court noted the material language in this clause is “as heretofore enjoyed,” and found this language creates a “cutoff” , in that the Missouri Constitution “protects the right as it existed when the constitution was adopted and does not provide a jury trial for proceedings subsequently created.”

The Court reaffirmed prior case law holding that “Missouri does not recognize a common-law claim for wrongful death,” and that “a claim for damages for wrongful death is statutory; it has no common-law antecedent.” Therefore, because the wrongful death cause of action was created by the legislature, the legislature retains the power to define and limit the remedy available, as in this instance, where the legislature elected to place a cap on the amount of non-economic damages recoverable under R.S.Mo. §538.210. Thus, the statute does not violate Article I, section 22(a) of the Missouri Constitution.

As to Sanders’ claim of a separation of powers violation, the Court quotes Article II, section 1 of the Missouri Constitution, which states:

powers of government shall be divided into three distinct departments – the legislative, executive and judicial – each of which shall be confided to a separate magistracy, and no person, or collection of persons, charged with the exercise of powers properly belonging to one of those departments, shall exercise any power properly belonging to either of the others, except in the instances in this constitution expressly directed or permitted.

The Court then walks through the history of the wrongful death cause of action and the process of adjudicating a wrongful death claim, holding:

In adopting this statute, the General Assembly created the law through which the wrongful death cause of action operates. The fact-finder – whether judge or jury – makes a factual determination when returning its verdict. The judge then enters judgment by applying the law to the fact-finder’s determination. The limit on damages within section 538.210 [sic] interferes neither with the jury’s ability to render a verdict nor with the judge’s task of entering judgment; rather, it informs those duties.

The remedy available in a statutorily created cause of action is “a matter of law, not fact, and not within the purview of the jury.” [citation omitted]. To hold otherwise would be to tell the legislature it could not legislate; it could neither create nor negate causes of action, and in doing so could not prescribe the measure of damages for the same.

Again, it is important to note that the statutory cap on non-economic damages for wrongful death claims addressed in Sanders applies only to those wrongful death claims brought against a “health care provider” which arise out of the rendering, or failure to render, health care services. However, to the extent a plaintiff brings such a claim, Sanders instructs that R.S.Mo. §538.210 is a constitutional and enforceable limitation on recoverable non-economic damages.

About the Author

John Brigg

John M. Brigg practices as a litigation attorney with an emphasis in defense. John has had both first and second chair jury trial experience,... More about John Brigg

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