Missouri's statutory cause of action for medical negligence: legitimate application of legislative authority or violation of constitutional rights?

Author:Mace, Emily
Position:Senate Bill 239

    For hundreds of years, victims of medical malpractice have been authorized to file civil actions against negligent health care providers. (1) Missouri affirmed the presence of a medical negligence cause of action when the legislature adopted the common law practices of seventeenth-century England under Missouri Revised Statutes section 1.010 in 1825. (2) A right to trial by jury accompanied the cause of action and included the right to receive a damages award in accordance with a jury determination. (3)

    In 1986, Missouri Revised Statutes section 538.210 capped noneconomic portions of jury awards in medical negligence cases at [Dollar]350,000. (4) The plaintiff in Adams v. Children's Mercy Hospital, a 1992 case, was first to challenge the statute on constitutional grounds. Section 538.210 survived, however; the Supreme Court of Missouri determined the fact-finding role of a jury remains uncompromised even when judges alter the awards. (5)

    When caps were tested again in Watts v. Lester E. Cox Medical Centers, in 2012, the Supreme Court of Missouri took a different approach and ruled that noneconomic damages limitations did interfere with the right to trial by jury. (6) The court reasoned that imposing a cap on jury awards, when the cap would not have applied to identical causes of action in 1820, amounted to an unconstitutional alteration of the right to trial by jury. (7) The Missouri General Assembly responded by enacting Senate Bill 239 ("SB 239"), which attaches noneconomic damages caps to a new statutory cause of action for medical negligence. (8)

    This Note discusses whether SB 239 is likely to survive future arguments against its constitutionality. Part II describes the bases upon which damages caps have been challenged in Missouri and the role of the right to trial by jury in analyzing damages caps. Part III then provides a short procedural history of SB 239. Finally, Part IV discusses whether SB 239 attempts to alter a common law cause of action in a way that renders the statute unconstitutional, or whether it abolishes and recreates the cause of action in a manner permitted by the Missouri Constitution.


    Whether to limit the value of noneconomic damages recoverable by victims of medical negligence is a contentious issue and one Missouri courts and lawmakers have struggled to manage. (9) Such caps were first instituted in Missouri in 1986, after more than 150 years of practice without them. (10) In 2012, the law was overturned for constitutional reasons, but it recently returned in a slightly new form. (11) Under SB 239, medical malpractice--traditionally a common law tort (12)--became a statutory cause of action and is again accompanied by limitations on noneconomic damages. (13) This Part examines more closely the path leading to a statutory cause of action, including the origins of medical malpractice claims in Missouri and the cases related to caps on noneconomic damages.

    1. Overview of Damages, Caps on Damages

      As civil tort suits, today's medical malpractice claims allow awards of both compensatory and punitive damages. (14) Compensatory damages are categorized as economic damages--financial charges resulting from the injury, including lost wages and medical expenses--or noneconomic damages--intangible costs of the injury, such as physical impairment or the experience of pain. (15) Noneconomic damages are commonly considered compensation for "pain and suffering," though the scope of these awards reaches far beyond the physical experience of pain. (16)

      Medical malpractice lawsuits are unique among civil claims for the frequency with which states ascribe to them noneconomic damages caps. (17) At least thirty-seven states have at some time imposed limits on the amount of money that may be awarded to victims of medical negligence. (18) Such limitations first began appearing in the early 1970s, when the limited availability of medical malpractice insurance led to dramatically increased costs. (19) This "perceived crisis" caused many states to impose damages caps; legislatures hoped to stabilize the medical malpractice insurance market by decreasing risk, thereby encouraging companies to invest, which would increase insurance availability. (20)

      Currently, damages in medical negligence cases are capped in thirty states. (21) Of these, twenty-five states--including Missouri--specifically cap noneconomic damages for medical malpractice or personal injury under statutes. (22) Five others employ broader caps covering more than the category of noneconomic damages. (23) Twenty states do not limit the amount of money recoverable by plaintiffs in medical malpractice cases. (24)

    2. Medical Malpractice as a Cause of Action in Missouri

      Records of medical malpractice decisions in England date back to the twelfth century. (25) Such causes of action developed as part of the common law, acknowledging that injuries arising from physicians' or surgeons' "neglect or want of [s]kill" constituted a "private wrong" actionable in court. (26) Medical negligence lawsuits traveled with the English across the Atlantic, and in the 1800s began to appear in the United States. (27)

      Settlers of European descent who came to Missouri chose to adopt laws similar to those with which they were already familiar. (28) In 1816, the Missouri territory enacted a reception statute, proclaiming that "[t]he common law of England... and all statutes made by the British parliament... prior to [1607]... shall be the rule of decision in this territory." (29) Similar language was used in Missouri Revised Statutes section 1.010, a version of the rule enacted after Missouri became a state. (30) As a common law cause of action clearly present in England prior to 1607, the ability to bring claims against providers for medical negligence has existed in Missouri for more than 200 years. (31)

    3. The "Inviolate" Right to Trial by Jury

      When a cause of action was created and whether it was a product of common law or statute has proven relevant in determining which rights accompany it--particularly when the right in question is that of a trial by jury. (32) This concept was illustrated by the Supreme Court of Missouri in State ex rel. Diehl v. O'Malley. (33) Diehl held that a claim for damages brought under the Missouri Human Rights Act was accompanied by the right to a jury trial. (34) The court's decision focused on the nature of the claim: "Diehl has filed a civil action, for damages only, under the Missouri Human Rights Act. This action is neither equitable nor administrative in nature. Diehl's civil action for damages for a personal wrong is the kind of case triable by juries from the inception of the state's original constitution." (35)

      The court found that denying the plaintiff's request for a jury trial was unconstitutional, and that a jury should have been allowed to determine damages. (36)

      In Scott v. Blue Springs Ford Sales, the Supreme Court of Missouri again stated that civil actions for damages are accompanied by the right to a jury trial. (37) There, the claim for damages was filed under the Missouri Merchandising Practices Act. (38) The court clarified that even a statutory claim holds the right to trial by jury if it is a claim for damages. (39) As a result, it is possible that the right to trial by jury is attached to a great many causes of action created throughout the last two centuries.

      Missouri's Constitution states, "[T]he right of trial by jury as heretofore enjoyed shall remain inviolate." (40) The Supreme Court of Missouri has established that this phrase means the right to trial by jury "is 'beyond the reach of hostile legislation.'" (41) Interpretation of that phrase, however, varies between judges.

      Diehl stated that by including the phrase "as heretofore enjoyed," the authors of the Missouri Constitution meant for the right to jury trial to remain in every way as it was in 1820; that is, the right should not deviate from "that which existed at common law before the adoption of the first constitution." (42) Therefore, any cause of action warranting a jury trial existing in 1820 is still accompanied by the right today. (43) That restricting the application of a jury award fundamentally limits the right to a jury trial a Missourian would have enjoyed in 1820 is an argument used in the fight against damages caps. (44)

    4. Medical Malpractice Damages Caps in Missouri

      Statutorily imposed caps on noneconomic damages in medical malpractice claims first appeared in Missouri in 1986, in Missouri Revised Statutes section 538.210. (45) The caps were passed as part of a larger bill codifying recovery of damages for "personal injury or death arising out of the rendering of or failure to render health care services" (46) and limiting the payout for non-economic damages to $350,000. (47) This amount was set to adjust for annual inflation in accordance with the U.S. Department of Commerce estimates and applied to each individual occurrence of malpractice for each defendant in the suit. (47) Noneconomic damages were defined as those "arising from nonpecuniary harm including, without limitation, pain, suffering, mental anguish, inconvenience, physical impairment, disfigurement, loss of capacity to enjoy life, and loss of consortium." (49)

      For nearly twenty years, the law remained unchanged. It did not, however, go unchallenged. In Adams v. Children's Mercy Hospital, Julia Adams filed suit after doctors administered nearly three times the proper amount of crystalloid solution while performing surgery on her eight-year-old daughter, Nicole. (50) Crystalloid solution is used during surgeries to replace fluids lost by the body, but the excessive amount introduced to Nicole's system led to significant swelling. (51) Because a doctor had removed the endotracheal tube maintaining Nicole's air supply, her throat closed and her brain spent six minutes without oxygen, leading to severe physical and mental impairments...

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