Quality, Affordable Health Coverage For Every Missourian. Missouri Tort Reform and Medical Malpractice

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1 Quality, Affordable Health Coverage For Every Missourian Missouri Tort Reform and Medical Malpractice Spring 2012

2 Table of Contents Introduction What s the Problem? Nationally Missouri What are Missouri s Tort Reforms? Harder to Sue Harder to Collect Large Damage Awards Federal Medical Malpractice Reform What is the Impact of Reforms? Evidence from Studies Missouri Data How are Plaintiffs Affected? Conclusion Endnotes

3 Acknowledgements This paper was written by Jeffrey Herman, JD for the Missouri Foundation for Health. 3

4 Introduction A tort is the right to sue for injury to one s person or property. Medical malpractice is a tort brought against a health care professional, usually based on negligence. Traditionally, all torts are created by state courts and left to them to change. However, state legislatures can also change tort law by passing statutes. Medical malpractice reform is based on a belief that the malpractice system significantly increases the costs of health care (e.g., too many claims are made, frivolous claims prevail, damage awards are excessive, liability insurance is too expensive, and physicians practice defensive medicine). This report discusses: (1) the background on medical malpractice at the state and national levels; (2) what Missouri s reforms are; (3) a proposed federal law; and (4) the impact of reforms. It ultimately concludes that medical malpractice reforms may reduce total health care spending by about 0.5 percent, reduce the number of claims and lawsuits, and increase the supply of physicians by around 2 percent. In Missouri, the only clear impacts have been a large drop in the number of claims and lawsuits and a much more profitable malpractice insurance industry. The burdens of the reforms likely fall disproportionately on the young, economically disadvantaged, and those who suffer the most severe injuries. What s the Problem? Nationally Between 1950 and 2009, total U.S. tort costs including damages, defense costs, and administrative expenses rose from $1.8 billion (about $106 a person and 0.62% of GDP) to $248.1 billion (about $808 per person and 1.74% of GDP). 1 In particular, medical malpractice costs increased from $1.16 billion in 1975 to $29.95 billion in If the costs of defensive medicine are added, the total might be as high as $55.6 billion, about 2.4 percent of total health care spending. 3 Though the costs of torts are high, there is strong evidence that: Medical errors harm patients in between 1.4 and 1.8 percent of hospitalizations, and the number of people who die from medical errors each year is higher than the number of people who die each year from car accidents, breast cancer, and AIDS; 4 Only about 5 to 10 percent of negligently injured patients sue their physician or hospital, and only about 40 percent of those ever receive some form of compensation for their injuries; 5 Plaintiffs win medical malpractice cases just 19 to 27 percent of the time, compared to 52 percent of the time with other torts; 6 Frivolous claims are far less likely to receive payment than legitimate claims; 7 Under-compensation is more typical than overcompensation, especially for the most severe injuries; 8 Overall, liability payments and administrative expenses in medical malpractice cases were $9.85 billion in 2008, about 0.4 percent of total health care spending; 9 and 4

5 Defensive medicine (i.e., when physicians order unnecessary tests or avoid risky patients or procedures) likely accounts for a small portion of total health care spending, around 1.96 percent. 10 Missouri Before the first medical malpractice reforms passed in 1986, there was an array of evidence that both supports and refutes the existence of a crisis in medical malpractice premiums enough evidence, in fact, that at the very least, it is a debatable proposition that such a crisis does in fact exist. 11 There is similarly little evidence of a medical malpractice crisis before Missouri passed its latest medical malpractice reforms in 2005: The numbers of tort lawsuits and malpractice lawsuits filed were stable; The total numbers of claims made against physicians and hospitals as reported by malpractice insurers were stable; The percentage of claims resulting in lawsuits increased slightly, but the percentage of plaintiffs receiving any payment remained stable, and the percentage of claims resulting in a court verdict for the plaintiff steadily decreased; The average amount paid on claims by malpractice insurance companies fluctuated a large amount year-to-year, but steadily increased from the low- to mid- $100,000s to the low- to mid- $200,000s (not adjusted for inflation); Malpractice insurers had unprofitable years in 2002 and 2003, but paid out less than 50 percent of their premiums on claims in 2004 and 2005; and The average economic and noneconomic damages paid after a court judgment fluctuated too much between 2001 and 2005 to draw any conclusions. Whether the problems of torts and medical malpractice are real or not, Missouri and many other states have enacted tort reforms to address them. What are Missouri s Tort Reforms? Missouri s 1986 and 2005 medical malpractice reforms were based on concerns that medical malpractice lawsuits were increasing the costs of health care and threatening the stability of the health care system. 12 Accordingly, Missouri s reforms are designed to make it harder to sue and harder to collect large damage awards. Harder to Sue Less Time to Sue: For most torts, a person must bring a lawsuit within two or five years after the harm is reasonably discoverable. 13 For medical malpractice, however, a person has two years from the date the wrong is committed, which means a person can lose the right to sue before his or her injury is even discoverable. 14 Moreover, a person can lose the right to sue while mentally incapacitated. 15 5

6 Harder to Sue Hospitals: Before reform, a hospital could be liable for a physician s malpractice if the physician was an employee or appeared to be acting on the hospital s behalf (making the physician the hospital s agent ). 16 Now, hospitals and other health care providers can only be liable if the physician was an employee, not merely an agent. 17 As a result, hospitals and other providers can avoid liability for their physicians malpractice simply by hiring them as agents, not employees. Health Care Provider s Opinion Required to Sue: A plaintiff seeking damages must get a health care provider s written opinion that the defendant acted negligently and contributed to the plaintiff s damages. 18 The health care provider giving the opinion must be licensed and in the same profession and specialty as the defendant. 19 This requirement has been upheld as constitutional. 20 Lawsuits Can Be Brought in Fewer Places: A plaintiff can sue a person for medical malpractice only in the county in which the plaintiff first received treatment by any defendant for any medical condition at issue. 21 This definition means a plaintiff no longer has a choice of where to bring the lawsuit, even if there are multiple defendants and injuries. Harder to Collect Large Damage Awards $350,000 Cap on Noneconomic Damages: Noneconomic damages include pain, suffering, mental anguish, disfigurement, and the loss of capacity to enjoy life. 22 The American Tort Reform Association believes that the broad and basically unguided discretion given juries in awarding damages for noneconomic loss is the single greatest contributor to the inequities and inefficiencies of the tort liability system. 23 Twenty-one states have put caps on noneconomic damages, while caps have been found unconstitutional in six states. 24 In Missouri, a plaintiff in a medical malpractice case cannot ever get more than $350,000 in total non-economic damages, even if there are multiple defendants or lawsuits. 25 Moreover, the amount of the cap is no longer increased with inflation. 26 A prior version of the cap was upheld as constitutional in 1992, but some members of the Missouri Supreme Court believe the current cap is unconstitutional by violating the right to trial by jury and equal protection clauses in the Missouri Constitution. 27 Seven Limits on Punitive Damages: Punitive damages are designed to punish a defendant and deter similar conduct by the defendant and others. As of February 2011, 32 states have reformed punitive damages, while reforms in another two states were found unconstitutional. 28 Missouri has limited punitive damages in seven ways: They must be proved by clear and convincing evidence; 29 In a medical malpractice case, a plaintiff must prove willful, wanton or malicious misconduct on the defendant s part, which will be difficult in a negligence case; 30 At any party s request, punitive damages are awarded in a two-stage trial. 31 The jury determines a defendant s liability for punitive damages in the first stage, and the amount of punitive damages in the second stage, and it is only at that point the jury can learn the defendant s net worth; 32 The amount of punitive damages is capped at $500,000 or five times the amount of other damages awarded, whichever is greater; 33 6

7 After trial, the defendant can have a punitive damages award reduced by punitive damages he has already paid in other cases based on the same conduct; 34 The State keeps 50 percent of any punitive damages award, except for those awarded in medical malpractice claims. 35 The Missouri Supreme Court has upheld this provision against attacks on state and federal constitutional grounds; 36 and Defendants are responsible only for their own punitive damages, not those of other defendants. 37 Damages for Medical Treatment are Lower than Full Cost of Care: When a plaintiff seeks damages for medical treatment, the cost of that treatment is presumed to be the amount the health care provider accepts as full payment. 38 This amount will usually be lower than the full price the provider might otherwise charge, as most health insurers negotiate for discounted rates, and providers often provide discounted or free care to the uninsured. However, any party can get more or less than the presumed amount by providing substantial evidence of the real value of medical treatment, which can include medical bills and amounts actually paid. 39 Plaintiffs Collect Less of Their Future Damages: If a plaintiff wins more than $100,000, the defendant can choose to pay any future damages (money for future losses) in multiple payments over time, rather than in one payment up front. 40 This is good for the defendant. He or she has more time to pay the plaintiff and can earn interest on the money before it is paid. Moreover, interest is only added on to future medical damages, which means inflation is constantly reducing the value of every dollar the plaintiff gets for his or her non-medical damages. 41 The Missouri Supreme Court upheld the periodic payment system from constitutional attack. 42 No Interest on Damages: For other torts, interest is added on to a plaintiff s damages beginning on the date ordered and ending when they are finally paid, and the beginning date can go back to when a settlement offer was rejected if the defendant ends up owing more than the offer. 43 In contrast, a plaintiff in a medical malpractice case gets no interest as a matter of course or with the rejection of a settlement offer. 44 Fifteen other states have limited the ability of plaintiff s to collect interest before damages are ordered. 45 No Increase or Decrease of Jury Awards: Statutes giving courts the power to increase or decrease the amount of damages awarded by a jury do not apply in medical malpractice cases. 46 Thus, courts cannot give a plaintiff more than he or she won, but also not less. Harder to Collect From Multiple Defendants (Fair Share Rule): Under joint and several liability, a defendant responsible for any damages can be forced to pay all of the plaintiff s damages, and the defendant s only option is to sue co-defendants for their shares. 47 This makes it a lot easier for plaintiffs to get paid, but is potentially unfair to defendants. As of February 2, 2011, 39 states have reformed joint and several liability, while Pennsylvania s reforms were found unconstitutional. 48 In Missouri, only a defendant who is responsible for at least 51 percent of the damages can be forced to pay all the damages; otherwise, the defendant is responsible only for his or her share. 49 This is called a fair share rule. Further in Missouri, defendants can never be forced to pay co-defendants punitive damages, and juries are never told about any of these rules, which prevents them from adjusting their verdicts to make it easier for plaintiffs to get paid. 50 7

8 No More Double Recoveries: Under something called the collateral source rule, a plaintiff can get paid twice for the same loss: once by his or her insurance company, and once by the defendant. This is because the rule prevents defendants from showing the jury the plaintiff was paid by insurance, and prohibits such payments from reducing the plaintiff s damages. The purposes of the rule are to adequately deter defendants, as otherwise they would not be responsible for the full harm they caused, and to encourage people to buy insurance. But the rule has been criticized for allowing double recoveries, and 24 states have reformed the rule in some way, while reforms in two states were found unconstitutional. 51 In Missouri, a defendant can sometimes get around the collateral source rule. First, if the defendant or their insurer has already paid the plaintiff for their injuries, the court will reduce the plaintiff s damages by that amount Second, if the defendant pays the plaintiff s special damages (like medical expenses), the defendant can introduce evidence these damages have already been paid by someone. 53 Defendants get to choose which way they get around the collateral source rule, but they cannot do both. Federal Medical Malpractice Reform The Help Efficient, Accessible, Low-Cost, Timely Healthcare (HEALTH) Act of 2011 (introduced in Congress but not yet voted on) would make some laws governing medical malpractice lawsuits the same across states. 54 However, it would not apply over state laws that better protect health care providers, or over state laws that specify the amount of damages plaintiffs can collect. As a result, the HEALTH Act would not significantly change Missouri laws if passed. The following would be the noteworthy changes: Even Less Time to Sue: Lawsuits must be brought within one year after the plaintiff discovers (or reasonably should have discovered) the injury, but never more than three years after the injury. 55 Stricter Fair Share Rule: No defendant can ever be forced to pay the damages owed by another defendant, just his or her own share. Cap on Contingent Attorneys Fees: Attorneys fees are capped at 40 percent of the first $50,000; 33 1/3 percent of the next $50,000; 25 percent of the next $500,000; and 15 percent of any additional compensation. Missouri currently has no cap on attorneys fees. Two More Limits on Punitive Damages: The HEALTH Act contains numerous provisions limiting punitive damages. Most of these are the same as or very similar to Missouri law. However, two limitations would be entirely new to Missouri: Parties can ask for punitive damages only after the court finds there is a substantial probability the party will win punitive damages; Punitive damages can only be ordered if compensatory damages are also ordered; Insurance Companies Cannot Collect from Defendants or Plaintiffs: Companies that pay money to a plaintiff for his or her injuries, such as insurance companies, cannot sue defendants in order to recover amounts they paid to the plaintiff, and neither can they take any of the plaintiff s winnings. 8

9 At most, only a handful of Missouri laws would change. The provisions of the HEALTH Act were deliberately chosen to match a group of reforms studied by the Congressional Budget Office (CBO), showing that they can lower certain health care costs. These reports are discussed below. What is the Impact of Reforms? Evidence of impact comes from studies that have not focused specifically on Missouri, as well as from limited Missouri data. Evidence from Studies A group of tort reforms adopted together, similar to the HEALTH Act (i.e., a one year statute of limitations for adults and three years for children, a $250,000 cap on noneconomic damages, a cap on punitive damages of $500,000 or two times the economic damages, eliminating the collateral source rule, and a fair share rule) can do the following: 56 Reduce all medical malpractice costs by about 10 percent; Reduce medical malpractice liability insurance by about 10 percent; Reduce defensive medicine, saving 0.3 percent on total health care costs a year; Reduce federal spending on mandatory health care services by $41 billion between 2010 and 2019; Generate $13 billion in new federal tax revenues between 2010 and 2019; and Reduce total health care spending by about 0.5 percent. The effect on health outcomes is inconclusive, as some studies find an increased mortality rate from increased medical errors, while other studies find no effect. 57 Individually, most medical malpractice reforms have no effect on total state health expenditures. In a CBO study, the only effect found was an increase in spending due to a fair share rule. 58 A fair share rule may lead to increased spending because physicians are more scared of being personally financially responsible for their medical errors, leading to more defensive medicine. 59 A fair share rule was also found to increase Medicare spending. 60 A cap on noneconomic damages reduced Medicare spending to a smaller degree. 61 Other studies have examined other effects of tort reforms: The Robert Wood Johnson Foundation found there is a high amount of evidence that: Caps on noneconomic damages reduce average payouts by 20 to 30 percent and modestly reduce defensive medicine, Limits on attorney fees have no effect on claim frequency, claim costs, or malpractice premiums, 9

10 Joint and several liability reforms have no effect on claim costs, Collateral source rule reforms have no effect on claim costs or defensive medicine; Caps on noneconomic damages may make malpractice insurers more profitable; 62 Damage caps may reduce malpractice insurance premiums; 63 States with certain reforms damage caps, eliminating punitive damages, limits on prejudgment interest, or collateral source rule reform increase the supply of physicians by 2.4 percent, compared to states without any of those reforms; 64 A cap on noneconomic damages can reduce the number of lawsuits against physicians in a state by 10 to 13 percent and reduce the average damages award against physicians by 65 to 74 percent; 65 A fair share rule can reduce the number of lawsuits against physicians in a state by 8 to 9 percent; 66 and An unpublished study shows that tort reforms might increase health insurance coverage for the self-employed and young single individuals by up to one percentage point. 67 Thus, reforms can save a small amount of money for the health care system, reduce the number of claims and lawsuits against physicians, and slightly increase the supply of physicians, but there is inconclusive evidence on how it will impact health outcomes. Missouri Data Some conclusions about the impact of reforms in Missouri can be drawn: Anticipating the reforms, plaintiffs tried to get their claims and lawsuits in before the reforms took effect or eliminated their rights to sue, as the number of claims and lawsuits jumped dramatically in 2005 and 2006, respectively; Most claims and lawsuits have dropped since reform: Claims against physicians are down about 24 percent, from an average of 847 in the four years before reform to an average of 643 after reform; There was no drop in claims against hospitals, as the average number of claims increased after reform from 367 to 376; Tort lawsuits are down about 23 percent, from an average of 19,165 in the four years before reform to an average of 14,819 after; Malpractice lawsuits are down about 35 percent, from an average of 864 before reform to an average of 575 after; Despite a small drop in 2006, the number of claimants receiving any compensation has remained steady around 30 percent, and the percent of all claims resulting in a court verdict for the plaintiff has remained steady around 1 percent; 10

11 Medical malpractice insurers have become more profitable, using less than a third of the premiums they collect to pay actual liability claims; The average amount of economic damages awarded in court fell nearly two-thirds in 2007, but has increased every year since to levels higher than before tort reform; and The average amount of noneconomic damages awarded in court has fluctuated too much to draw any conclusions. With claims and lawsuits down, state malpractice costs may have decreased, but the benefits may not have resulted in reduced premiums for physicians, since insurers now keep a greater percentage of their premiums, and plaintiffs are getting payments and winning in court at the same rates as before. How are Plaintiffs Affected? Missouri Supreme Court Justice Michael A. Wolff believes the drop in Missouri malpractice cases since 2005 disproportionately affects the elderly, the disabled, and those who do not work outside the home (mostly women). 68 Judge Teitelman agreed, writing that: [T]he impacts of the caps will fall disproportionately on the young and economically disadvantaged. Young people, because they will have to live with their injuries and disabilities the longest, bear the brunt of [the cap on noneconomic damages]. Similarly, those with generally more limited economic prospects the poverty-stricken, the physically and mentally disabled, single mothers, wounded veterans, the elderly, and others are impacted disproportionately by the arbitrary limits on non-economic damages Few lawyers will take a complex case of medical negligence on behalf of a poor person whose damages are disproportionately non-economic. For the young and economically disadvantaged, [the cap] will act [as] a padlock on the courthouse door. As compelling as the state s interest in quality health care is, I cannot see the necessity of providing that care on the backs of the most disadvantaged victims of medical negligence. 69 This argument is supported by studies showing that caps on noneconomic damages disproportionately affect children and the most severely injured plaintiffs. For example, a study of California s $250,000 cap showed that noneconomic damages make up 98 to 99 percent of the damages in child wrongful death cases, and 58 to 75 percent of damages in adult injury and wrongful death cases. 70 Future economic damages for children are usually too speculative to collect (e.g., it is uncertain what a child might have earned in his or her lifetime), and juries may adjust by awarding larger non-economic damages. As a result, the cap on non-economic damages reduced the average award in child wrongful death cases by 81 percent, and the average award in adult injury and wrongful death cases by 12 to 51 percent. For example, a plaintiff whom the jury awards $2 million for the death of a child may get only $380,000 after the cap is applied. 11

12 Conclusion There is debate as to whether there has ever been a crisis with medical malpractice nationally or in Missouri, but regardless, the State has responded with numerous reforms designed to make it harder to sue and harder to collect large damages. The federal HEALTH Act, currently before Congress, would not change these laws much. As a group, the reforms may reduce total health care spending by about 0.5 percent, reduce the number of claims and lawsuits against physicians, and increase the supply of physicians in the state by around 2 percent. In Missouri, the only clear impact has been a drop in the number of claims and lawsuits made and a more profitable malpractice insurance industry, while other indicators remain largely as they were before reform. Ultimately, the burdens of the reforms likely fall disproportionately on the young, economically disadvantaged, and those who suffer the most severe injuries. 12

13 Outcomes of Medical Malpractice Torts in Missouri All Torts Filed in Missouri All Malpractice Torts Filed in Missouri All Claims Against Physicians All Claims Against Hospitals Percentage of Claims Resulting in a Lawsuit Percentage of Closed Claims Receiving any Payment Percentage of All Claims Resulting in Court Verdict for Plaintiff Average Insurance Indemnity Payment per Closed Claim Malpractice Insurance Company Loss Ratios Avg. Economic Damages After Court Judgment Avg. Non- Economic Damages After Court Judgment 1990 $86, $130, $122, $160, $120, $128, $155, $161, $149, $135, , $211, , $171, $191,706 $142, , $205, $172,972 $313, , $211, $274,192 $132, , $237, $158,112 $271, , , $266, $148,411 $284, ,980 1, $229, $234,559 $136, , $186, $84,234 $162, , $199, $109,373 $194, , $245, $262,810 $205, , $191, $284,169 $139,597 SOURCES: The numbers of torts and malpractice torts filed in Missouri are available in the Missouri Courts Annual Statistical Report Supplement for each year, at All other statistics are found in or calculated from data found in the Missouri Department of Insurance, Financial Institutions & Professional Registration s annual Medical Malpractice Insurance Reports, available at 13

14 Endnotes 1 Towers Watson, U.S. Tort Cost Trends: 2010 Update at 5-6, 8 12 (2010), available at pdf/3424/towers-watson-tort-report-1.pdf. These costs include all torts, whether settled before or after a lawsuit is filed, or resolved through a trial verdict. Id. at 2. 2 Id. at Michelle M. Mello et al., National Costs of the Medical Liability System, 9 Health Affairs (Sept. 2010), available at ncbi.nlm.nih.gov/pmc/articles/pmc /?tool=pubmed. 4 Linda T. Kohn et al., To Err is Human: Building a Safer Health System: Executive Summary, at 1 (1999) (citing studies), available at 5 David A. Hyman & Charles Silver, Medical Malpractice Litigation and Tort Reform: It s the Incentives, Stupid, 59 Vanderbuilt L. Rev. 1085, 1089 (2006); Brian K. Chen, Defense Medicine Under Enterprise Insurance: Do Physicians Practice Defensive Medicine, and Can Enterprise Insurance Mitigate Its Effect?, at 9-15 (2010), available at cfm?abstract_id= Hyman and Silver, supra note 5 at Id. at 1094 ( a strong correlation exists between the likelihood of receiving payment and the merits of malpractice claims; and [t]he HMPS, the only study to find the contrary, is unreliable on this point ). 8 Id. at See Mello et al., supra note See id. 11 Adams v. Children s Mercy Hosp., 832 S.W.2d 898, 904 (Mo. 1992) 12 H.B. 393, 93d Gen. Assembly, 1st Reg. Sess. (Mo. 2005) (medical malpractice reforms); Mahoney v. Doerhoff Surgical Services, Inc., 807 S.W.2d 503, 507 (Mo. 1991) ( It is readily understood [the 1986 medical malpractice reforms were a] response to... public concern over the increased cost of health care and the continued integrity of [the health care] system ). More general tort reforms not specific to medical malpractice reform were passed in S.B. 1211, 92d Gen. Assembly, 2d Reg. Sess. (Mo. 2004) (numerous tort reforms); H.B. 1115, 92d Gen. Assembly, 2d Reg. Sess. (Mo. 2004) (Commonsense Consumption Act). 13 Rev. Stat. Mo , (two years for intentional torts), (3) (five years for other injuries) (three exceptions to the limitation). 15 Rev. Stat. Mo (excluding medical malpractice from tolling of the statute of limitations). See also Hodges v. Southeast Mo. Hosp. Ass n, 963 S.W.2d 354, 359 (Mo. Ct. App. W.D. 1998) (explaining the same). The only way for an adult victim of medical malpractice to toll the statute of repose is by continuing to receive care and treatment essential to recovery from the allegedly negligent provider. See Hooe v. St. Francis Med. Ctr., 284 S.W.3d 738, (Mo. Ct. App. S.D. 2009) (citing Montgomery v. South County Radiologists, Inc., 49 S.W.3d 191, 194 (Mo. 2001)). 16 Bost v. Clark, 116 S.W.3d 667, 675 (Mo. Ct. App. W.D. 2003); George v. Lemay Bank & Trust Co., 618 S.W.2d 671, 674 (Mo. Ct. App. E.D. 1980). 17 Rev. Stat. Mo (3). 18 Rev. Stat. Mo The Missouri Supreme Court found the provision manifested the legislature s intent to eliminate strict liability for medical malpractice actions. Budding v. SSM Healthcare System, 19 S.W.3d 678 (Mo. 2000) (actively practicing in the same specialty or within 5 years of retirement from doing so). 20 Mahoney v. Doerhoff Surgical Services, Inc., 807 S.W.2d 503 (Mo. 1991) A plaintiff can sue a person for a tort only in the county where the plaintiff was first injured A lawsuit that is not brought in the right place can be transferred or dismissed (7). 23 American Tort Reform Association, Tort Reform Record, at 32 (2010), available at ATRA_Record_ pdf. 24 Id. at Rev. Stat. Mo , (2). 26 See H.B. 393, 93d Gen. Assembly, 1st Reg. Sess. (Mo. 2005). 27 See Adams v. Children s Mercy Hosp., 832 S.W.2d 898 (Mo. 1992) (rejecting challenges based on the Missouri Constitution). In a concurrence in Klotz v. St. Anthony s Medical Center, Judge Wolff expressed his opinion that the cap violates the right to trial by jury in the Missouri Constitution, and may unconstitutionally usurp judicial power. Klotz v. St. Anthony s Med. Ctr., 311 S.W.3d 752, (Mo. 2010) (J. Wolff, concurring). Judge Teitelman agreed and also believes the cap violates the equal protection clause of the Missouri Constitution by discriminati[ng] against the small number of unfortunate 14

15 individuals who suffer the most debilitating, painful, lifelong disabilities as a result of medical negligence. Id. at (J. Teitelman, concurring). 28 ATRA, Tort Reform Record, supra note 23, at Rodriguez v. Suzuki Motor Corp., 936 S.W.2d 104, 111 (Mo. 1996). 30 Rev. Stat. Mo In other cases, they are available if the defendant acted with an evil motive, which can be shown by wanton, willful, or outrageous acts, or by a reckless disregard for an act s consequences. Burnett v. Griffith, 769 S.W.2d 780, 787 (Mo. 1989) , (plus exceptions) 34 Rev. Stat. Mo See also , 5 (exceptions) The State contributes 74 percent of its share to the Uncompensated Tort Victims Fund (see below) and 26 percent to help fund civil legal services for low-income individuals , See Fust v. Atty. Gen. for the State of Mo., 947 S.W.2d 424 (Mo. 1997); Hoskins v. Bus. Men s Assurance, 79 S.W.3d 901 (Mo. 2002) (2). See also (1) (any party has right to introduce evidence of the value of medical treatment received by any party). 39 Id. See also Deck v. Teasley, No. SC90628 at 7 (Mo. 2010). 40 Rev. Stat. Mo , See Adams v. Children s Mercy Hosp., 832 S.W.2d 898 (Mo. 1992) , ATRA, Tort Reform Record, supra note 26, at Rev. Stat. Mo (right to contribution). 48 ATRA, Tort Reform Record, supra note 23, at Rev. Stat. Mo (two exceptions) , ATRA, Tort Reform Record, supra note 23, at 2-3, 14 (stating that 35% of total payments to medical malpractice claimants are for expenses already paid from other sources, but providing no source for the statistic). 52 Rev. Stat. Mo , , 3; Murphy v. S.S. Kresge Co., 205 S.W.2d 252, 256 (Mo. Ct. App. 1947) (special damages include medical expenses). 54 H.R. 5, Rep. No , 112th Congress, 1st Session (2011), available at xpd?bill=h There are also numerous federal laws that supersede state tort law in specific circumstances. See, e.g., ATRA: Federal Laws Addressing Liability, (last visited Sept. 15, 2011). 55 The HEALTH Act also provides that the time to bring an action is tolled if there is fraud, intentional concealment, or a foreign object is left inside the body. If a person is a minor under age 6, the lawsuit must be brought within three years of the injury s manifestation, but in no case earlier than the day before the minor s eighth birthday. This provision would be much stricter than Missouri law, which gives minors at least until their 20th birthday to file suit, and would preempt state law. 56 Letter to Senator Orrin G. Hatch, from Douglas Emendorg, Director, CBO, at 2-5 (Oct. 9, 2009), available at gov/ftpdocs/106xx/doc10641/10-09-tort_reform.pdf. See also Randall R. Bovbjerg, Malpractice Reform and Healthcare Costs, in IOM, The Healthcare Imperative: Lowering Costs and Improving Outcomes: Workshop Series Summary at 326 (2011), available at (literature review arguing that total health care savings of up to 0.9 percent are plausible). 57 Letter to Orrin Hatch, supra note 56, at Congressional Budget Office, Medical Malpractice Tort Limits and Health Care Spending, at 22, 25 (Apr. 2006), available at 59 Letter to Senator John D. Rockefeller IV, from Douglas W. Emendorf, Director, CBO, at 3, (Dec. 10, 2009), available at 15

16 60 CBO Report 2006, supra note 58, at Id. 62 CBO, The Effects of Tort Reform: Evidence from the States, at viii (2004), available at Report.pdf. 63 Leonard J. Nelson III et al., Damages Caps in Medical Malpractice Cases, 85 Milbank Quarterly 259, (2007), available at 64 Daniel P. Kessler et al., Impact of Malpractice Reforms on the Supply of Physician Services, 293 JAMA 2618, (2005), available at (three years after adoption, the effect was 3.3 percent). See also David A. Matsa, Does Malpractice Liability Keep the Doctor Away? Evidence from Tort Reform Damage Caps, at 2, (Jan. 19, 2007), available at id= (caps on damages in medical malpractice cases can increase the supply of specialist physicians in rural areas by percent). 65 Romen Avraham, An Empirical Study of the Impact of Tort Reforms on Medical Malpractice Settlement Payments, 36 J. Legal Studies S183, S206, S208 (2007), available at 66 Id. 67 Ronen Avraham & Max Schanzenbach, The Impact of Tort Reform on Private Health Insurance Coverage, February 2010, at 3 (May 12, 2010), available at insurance.pdf. 68 Klotz v. St. Anthony s Med. Ctr., 311 S.W.3d 752, 773 (Mo. 2010) (J. Wolff, concurring). 69 Id. at (J. Teitelman, concurring). 70 J. Clark Kelso & Kari C. Kelso, Jury Verdicts in Medical Malpractice Cases and the MICRA Cap (Aug. 5, 1999), available at 415 South 18th Street, Suite 400 St. Louis, MO Voice Fax Toll-Free

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