Cap on Non-Economic Damages in Med-Mal Cases Declared Unconstitutional

Watts v. Cox Medical Centers, et al.

Twelve expensive words in the world of medical malpractice: “the right of trial by jury as heretofore enjoyed shall remain inviolate….”  The Missouri Supreme Court recently held that those words, appropriated from Article I, section 22(a) of the Missouri Constitution, were the gatekeepers to million dollar medical malpractice verdicts.  In a recent 4-3 decision, the Court held Section 538.210, which placed a $350,000 statutory cap on non-economic damages in medical malpractice cases, is unconstitutional.  In doing so, the Court overruled Adams By and Through Adams v. Children’s Mercy Hosp., and rendered ineffective a statute that had been heralded as a prominent provision of the 2005 Tort Reform law.

On October 30, 2006, Deborah Watts, who was 39 weeks pregnant, presented at a clinic associated with Defendant Cox, complaining of cramping and decreased fetal movement.  Watts was seen by third year medical resident, Dr. Herman, who did not perform the necessary testing nor properly advise Watts of the implications of decreased fetal movement.  Dr. Herman’s supervisor was consulted and approved of Dr. Herman’s findings.  On November 1, 2010, Watts, apparently still suffering, presented at the hospital, where it was determined that she required an immediate Caesarean-section delivery, which she underwent, but only after some delay.  As a result of the foregoing treatment, Watts’ child “was born with catastrophic brain injuries.” (internal citations omitted).

The jury awarded $1.45 million in non-economic damages and $3.371 million in future medical damages.  The future damages were then reduced by the jury to reflect present value, and the trial court entered a payment schedule requiring half the award be paid immediately, with the remaining portion to be paid over a 50-year period with a statutory interest rate of 0.26 percent.  Watts appealed, asserting that Section 538.210 was unconstitutional and, further, that Adams should be overruled.

The Court initiated its analysis by establishing that Watts’ recourse hinged on whether the Missouri Constitution permitted a statutory cap on non-economic damages.  This, the Court found, was a two-part determination.  First, the Court set forth the maxim that the Missouri Constitution protected a Missourian’s right to trial by jury on any matter where such right existed before the Missouri Constitution was enacted.  So the question became, was Watts’ matter one that gave her the right to a trial by jury at common law?  In answering in the affirmative, the court noted that English common law, which Missouri common law is based on, “recognized medical negligence as one of the five types of ‘private wrongs’ that could be redressed in court.”  (Internal citations and quotations omitted).  Therefore, Watts’ medical malpractice action fell within the genus of cases that were recognized by Missouri common law in 1820.

In the second part of the analysis the Court looked at whether, in light of the statutory cap, the trial by jury remained “inviolate”.  Put another way, the question is whether the statute changed or blemished the right to trial by jury.  The court concluded that “[t]he individual right to trial by jury cannot ‘remain inviolate’ when an injured party is deprived of the jury’s constitutionally assigned role of determining damages according to the particular facts of the case.  Section 538.210 necessarily and unavoidably violates the state constitutional right to trial by jury.”

In reaching this holding, the Court overruled Adams, a 1992 decision that had set held Section 538.210 to be constitutional.  The Watts Court offered the following four rationales for not reaching its decision on stare decisis:   1) Adams deprived an individual their constitutional right to have a jury determine damages; 2) Adams allowed legislative limitations on an individual’s constitutional rights; 3) Adams cited an irrelevant U.S. Supreme Court opinion, which dealt only with civil penalties, not common law damages; and 4) Adams relied on a Virginia decision that was inapplicable because the Virginia Constitution contained different language and was not as resolute as Missouri’s Constitution in protecting the right to trial by jury.

In addition to this landmark holding, the Court also added gloss to the appropriate interpretation of Section 538.220.  That statue mandates the trial court, upon a defendant’s request, to order that future damages be paid in periodic payments, and also gives the trial court discretion to approve how the award should be divided amongst the lump sum and future payments.  The Court concluded that the statute should be interpreted to permit the trial court to consider the needs of the plaintiff in deciding how to allocate future damages into a lump sum or periodic payments.  Specifically, the Watts Court decided that part of the analysis should include the application of the statutory interest rate.  By way of illustration, the Court found that the interest rate applied to the periodic payments here was insufficient to cover the inflation that would occur over the life of the 50-year payment period.  As a result, the Court remanded the case for a determination of an appropriate payment schedule that affords Watts the financial security that was intended by the enactment of the statute.

About the Author

Patricia Mullins-Freeman

Patricia (Peezy) Mullins-Freeman’s practice focuses primarily on employment law and health care law. Peezy also works with many employers in defense and investigation of... More about Patricia Mullins-Freeman

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