The constitutionality of caps: upholding Missouri's right to jury trial and the non-economic damages debate.

Author:Lawrence, Rachel

Watts v. Lester E. Cox Medical Centers, 376 S.W.3d 633 (Mo. 2012) (en banc)


    Imagine a loved one who, through no fault of their own, suffers from the terrible consequences of a medical professional's negligence. Picture a family member who is left paralyzed, unable to ever independently walk or move below the waist again, who will spend most of his or her remaining years sitting in a bed or chair. Imagine the pain and suffering, emotional anguish, physical impairment, and loss of capacity to enjoy life that this person will face on a daily basis. Now imagine that for the rest of this person's life, the most he or she will be able to recover in non-monetary damages from the negligent medical professional is $350,000, no matter how negligent the care or severe the mental anguish. (1) Until a Supreme Court of Missouri decision in July 2012, (2) this was not an imaginary situation, but a very real problem facing hundreds (3) of Missouri patients and families.

    Tort reform is an issue within the health care industry that has seen attention both at the state and national level. (4) One aspect of tort reform involves capping damages in medical malpractice claims. (5) Missouri has capped damages since 1986 through Missouri Revised Statutes chapter 538, "Tort Actions Based on Improper Health Care." (6) Within its various sections, chapter 538 includes limits on non-economic damages, (7) how and when damages are paid, the requirement of affidavits by health care professionals confirming merits of the lawsuit, (9) immunity from civil liability for certain health care professionals, (10) and venue for certain actions against health care providers. (11) Under Missouri Revised Statutes section 538.210, a $350,000 non-economic damage cap was in place in 2012 when Watts v. Lester E. Cox Medical Centers was decided. (12)

    After a 4-3 decision by the Supreme Court of Missouri that declared the $350,000 statutory cap unconstitutional, supporters of tort reform predicted "dire consequences" for the future of the health care system. (13) Nationwide, supporters of non-economic caps claimed a medical malpractice "crisis" had unfolded, resulting in doctors moving their practices to states with lower malpractice insurance rates, turning away high-risk patients and engaging in "defensive medicine" to avoid potential malpractice lawsuits. (14) Physicians and other health care representatives blamed excessive, frivolous lawsuits and high plaintiff payouts for the rise in malpractice premiums. (15) In contrast, those who opposed the statutory cap celebrated the Watts decision, claiming Missourians had their "constitutional rights restored." (16) Nationally, plaintiffs' lawyers and patient advocates claimed states "unconstitutionally restrict[ed] access to the courts" and limited redress of injury when legislators capped damages. (17) Because caps limited recovery at a certain amount regardless of extent or type of injury, plaintiff advocacy groups alleged patients were "squeezed out of a system designed to give them full redress" for the harm they suffered. (18)

    This split in opinion raises important questions. Should caps on non-economic damages be constitutional in Missouri? Just how much do non-economic caps affect medical malpractice insurance premiums and the health care system overall? Are caps a fair solution to rising costs of health care or just a quick fix solution to a much more damaged system? This Note will discuss these questions and others involving the constitutionality of caps on non-economic damages and the policy issues that surround this controversial topic.

    This Note argues that the Watts decision appropriately invalidated the statutory limits on economic damages, finding non-economic caps on damages unconstitutional. Part II of this Note analyzes the facts and holding of Watts. Part III examines previous constitutional challenges to Missouri Revised Statutes chapter 538 and how the court interpreted constitutional language to reach its decision. Next, Part IV explains the court's rationale in Watts. Last, Part V explains why the court was correct in declaring non-economic damage caps unconstitutional and explores the policy issues behind statutory limitations on damages.


    On October 30, 2006, Deborah Watts (Watts) visited "a clinic associated with" the Cox Medical Center (Cox) after experiencing cramping and "decreased fetal movement" in the 39th week of her pregnancy. (19) A third year medical resident, Dr. Herrman, examined Watts, but failed to perform further diagnostic monitoring and applicable tests related to the decreased fetal movement. (20) Dr. Herrman's supervisor signed off on the examination. (21)

    Two days later, "Watts was admitted to the hospital due to lack of fetal movement[]" and "was placed on a fetal monitor at 9:10 a.m." (22) According to Watts' expert Dr. Roberts, the monitor indicated "fetal hypoxia" and "acidosis" by which the standard of care demands immediate delivery by caesarean section. (23) However, Dr. Green, a second year resident who was examining Watts, did not start the caesarean section until one hour and thirty-five minutes later, at 10:45 am. (24) As a result, Watt's son Naython was born with "catastrophic brain injuries." (25)

    Watts filed a medical malpractice claim against Cox on behalf of her son, asserting that Naython was born with disabling brain injuries caused by the hospital and its associated physicians' negligent care. (26) The jury found in favor of Watts, awarding $3,371 million in future medical damages and $1.45 million in non-economic damages. (27) As required by Missouri Revised Statutes section 538.210, the trial court reduced Watts' non-economic damages to $350,000. (28) Watts appealed from the Circuit Court of Greene County, claiming section 538.210 violated multiple provisions of the Missouri Constitution. (29)

    After reviewing the case de novo, the Supreme Court of Missouri held that Missouri Revised Statutes section 538.210 was unconstitutional. (30) The court reasoned that the non-economic cap interfered with the jury's role of determining an injured party's damages and thus "violate[d] the right to trial by jury guaranteed by article 1, section 22(a) of the Missouri Constitution." (31) The court reversed the judgment of capped damages pursuant to section 538.210, overruling Adams v. Children's Mercy Hospital, (32) which held non-economic caps constitutional. (33)


    This Part will first discuss the history of Missouri Revised Statutes chapter 538, specifically section 538.210 before and after its revision in 2005. Next, this Part will examine chapter 538's history of constitutional challenges in Missouri. This Part will then explain and analyze phrasing within the Missouri Constitution that guarantees Missouri's right to trial by jury. Next, this Part will look at the Supreme Court of Missouri's interpretation of legislative reasoning behind statutory caps and the rising costs of health care. Lastly, this Part will compare different state approaches to non-economic caps by examining why different state courts have upheld or overturned caps based on their respective state constitutions.

    1. The History of Missouri Revised Statutes Chapter 538

      In 1975, California became the first state to cap non-economic damages at $250,000, a ceiling that remains in effect today. (34) Although in 1975 $250,000 was about the equivalent of one million dollars in today's money, the cap has not been adjusted for inflation. (35) Other states such as Maryland (36) and Colorado (37) followed in 1986. Currently, more than half of all states have a type of cap in place that limits a plaintiffs non-economic damages. (38)

      Missouri first began to cap damages in medical malpractice claims in 1986 based on concerns about increasing malpractice premium costs and the high number of medical malpractice lawsuits. (39) The 1986 legislation limited a plaintiffs recovery to $350,000, an amount that was adjusted yearly by the Missouri Department of Insurance to reflect inflation. (40) By 2005, the limit had reached $579,000. (41) In addition, a plaintiff could recover multiple caps from one injury when there was more than one defendant. (42) Because of the increased monetary damages and the republican legislature's push for additional tort reform, (43) the Missouri legislature modified the statutory provision with several changes in 2005. (44) The new statute took effect August 28, 2005, and returned the non-economic damage cap to $350,000 without an escalator clause for inflation. (45) Until the Watts v. Lester E. Cox Medical Centers decision in July 2012, (46) some kind of limitation on non-economic damages existed in Missouri for the past 26 years.

      1. The Original Section 538.210

        In 1986, the Missouri legislature enacted chapter 538 in an effort to reform medical malpractice tort claims. (47) Included in chapter 538 was section 538.210, the limitation on non-economic damages. The section stated:

        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 [$350,000] per occurrence for noneconomic damages from any one defendant[.] (49) Additionally, in Missouri Revised Statutes section 538.210.3, the statute provided that when the trier of fact was a jury, the court shall not instruct the jury about the non-economic damage award limitation. (50) In section 538.210.4, the statute stated that the limits on non-economic damage awards were to be increased or decreased on January 1st each year in accordance with inflation. (51) Section 538.210.5 provided that punitive damages shall be awarded only after the plaintiff showed the health care provider exhibited "willful, wanton or malicious conduct" related to the action that caused the injury. (42)

        In 2001, the Missouri Court of Appeals, Western...

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