On February 16, 2021, the Missouri Court of Appeals, Western District, ordered transfer of a medical malpractice appeal to the Missouri Supreme Court to decide a constitutional challenge to the statutory cap on non-economic damages set out in Missouri Revised Statutes Section 538.210 (2015). The transfer marks the first challenge to the Missouri legislature’s 2015 tort reform, which abolished the common law cause of action for medical negligence, to make its way to the Supreme Court.
The crux of the issue framed by the Western District on transfer in Velazquez v. Reeves, 2021 Mo. App. LEXIS 168 (Feb. 16, 2021), is whether the Missouri legislature had the power to repeal the long-standing common law cause of action for medical negligence and replace it with a newly created statutory cause that includes a damages cap. In Velazquez, Plaintiff Ordinola Velasquez (“Ordinola”) obtained a jury verdict against multiple healthcare providers in claims seeking damages for injuries she allegedly sustained during the delivery of a child and post-partum care in September 2015. The jury awarded Ordinola $30,000 in past economic damages, $300,000 in past non-economic damages, and $700,000 in future economic damages.
In post-trial motions, the defense asked the trial court to reduce the non-economic damages award in accordance with Section 538.210.2(1), arguing the damages claimed by Ordinola were “non-catastrophic personal injuries” and subject to the cap. Plaintiff opposed remittitur citing the constitutional challenge to Section 538.210 asserted in her Petition. Alternatively, she argued if the trial court denied her constitutional challenge, that Section 538.210.2(2)’s definition of “catastrophic personal injury” applied to her damages. The trial court refused to find Section 538.210 unconstitutional but agreed with Ordinola that her damages involved catastrophic personal injury. As such, the Court entered a judgment reducing her non-economic damages award from the $1,000,000 awarded by the jury to $748,828 (the amount of the catastrophic personal injury cap at the time of the jury verdict).
The 2015 version of Section 538.210 was enacted as the legislature’s response to prior Missouri Supreme Court decisions finding damage caps on common law causes of action to be unconstitutional violations of a plaintiff’s right to a trial by jury. See Watts v. Lester E. Cox Medical Centers, 376 S.W.3d 633 (Mo. 2012) (finding the damages cap in the earlier version of Section 538.210 an unconstitutional infringement on the right to jury trial which attached to the plaintiff’s common law claim for medical negligence); Lewellen v. Franklin, 441 S.W.3d 136 (Mo. 2014) (holding punitive damages caps unconstitutional in common law fraud claims). In 2016, the Missouri Supreme Court conducted an analysis distinguishing the constitutionality of damages caps in causes of action created by statute from those existing at common law. “The constitutional jury trial right prohibits the enforcement of statutory caps on amounts recoverable on a common law cause of action but is not offended by such caps on amounts recoverable under a statutory cause of action.” Dodson v. Ferrara, 491 S.W.3d 542, 571 (Mo. 2016). Damages caps in statutorily created causes of action are constitutional because the Missouri legislature has the right to negate both a cause of action and a remedy that did not exist prior to 1820 (when Missouri’s constitution was ratified). Sanders v. Ahmed, 364 S.W.3d 542 (Mo. 2016).
The unanswered question for the Missouri Supreme Court is whether the legislature has the power to “repeal” a common law cause of action for the specific purpose of reinstating it as a statutory cause of action for the purpose of imposing otherwise unconstitutional damage caps. The Western District asserts the 2015 version of 538.210 is identical to the common law cause of action for medical negligence, but for the inclusion of the damages cap. “The ‘new’ cause of action appears to be subject to the same substantive standards, and the same procedural framework, as the earlier common-law action.” Velazquez, 2021 Mo. App. LEXIS 168, at *10.
Whether the Missouri Supreme Court agrees and strikes down the 2015 version of 538.210 remains to be seen. We will continue to monitor this case for developments. Please feel free to contact a member of our team if you have any questions regarding this important issue.