July 8, 2011
The Missouri Supreme Court has just put a challenge to the 2005 Missouri Tort Reform on its docket, SC-91867. The Greene County case comes straight from the trial court and challenges the constitutionality of the cap placed on non-economic damages. The matter arose when Ms. Deborah Watts, suing on behalf of her son Naython Watts, went in for her 39-week prenatal visit, at Lester E. Cox Medical Center, and claims she reported her baby was not moving as much as usual. Plaintiff alleges that her physician, Dr. Melissa Herrman, did not take any action to pursue Ms. Watts' concerns. Two days later, Ms. Watts went to the emergency room to undergo a cesarean section. Her baby was born with severe brain damage and cerebral palsy, as a result of a clotting issue which purportedly caused an inadequate supply of oxygen to his brain. The jury awarded Ms. Watts $4.82 million. The total award distribution breakdown is $3,371,000 future medical, $250,000 Past non-economic, and $1,200,000 future non-economic. There was also a settlement with a nurse on the case which resulted in a payment of $100,000 to the Plaintiff. However, with the cap placed on non-economic damages, the award will likely be reduced to around $3.7 million.
(Source: http://findarticles.com/p/articles/mi_7992/is_20110508/ai_n57477857/ )
Watts has appealed the case to challenge the constitutionality of the cap on non-economic damages. The last challenge to the 2005 Missouri Tort Reform arose in 2008 in the case Klotz v. St. Anthony's Medical Center (http://www.courts.mo.gov/file.jsp?id=37715). In this case, the challenge was based on the application of the cap on non-economic damages to a claim which originated in 2004. The court found that the 2005 Missouri Tort Reform cap on non-economic damages could not be applied retrospectively, to causes of action accruing before the date of the passage of the new tort reform. The court avoided the question on the constitutionality of caps on non-economic damages because it did not have to get to that issue in order to make its ruling. The fact that the Klotz's claims had accrued prior to the passage of the 2005 Tort Reforms was sufficient to resolve their appeal.
The pending challenge to the non-economic damage cap is currently being briefed for the Missouri Supreme Court.
Peter Spataro is a principal in Moser & Marsalek, P.C.'s Medical Liability & Health Care Law Litigation group and provides professional liability defense and risk management services primarily for medical professionals, as well as other industries.
