Guest commentary: Court got malpractice decision right

2012-08-10T00:00:00Z 2012-08-10T09:09:12Z Guest commentary: Court got malpractice decision rightBy Brett Emison
August 10, 2012 12:00 am  • 

Much will be written about the July 31 decision by the Missouri Supreme Court striking down arbitrary medical liability damages caps in order to ensure that "the right of trial by jury as heretofore enjoyed shall remain inviolate," including "Trial by job creator" )Aug. 2). Indeed, it was a good day for supporters of constitutional rights and limited government.

Patient advocates, constitutionalists and limited government advocates will praise the decision; business interests and insurance companies will decry it. Just hours after the decision, the executive vice president of the Missouri State Medical Association echoed the tired rallying cry of "lawsuit crisis." Some business- and special interest-oriented legislators already plan to amend the Missouri Constitution to limit the right to trial by jury in order to reimpose caps on victims.

The story of this decision is not trial lawyers, or special interest groups or politics. The real story is about five-year-old Naython Watts and other victims.

Naython's mother is Deborah Watts. During pregnancy, Watts was treated at a facility owned by Cox Medical Centers. At 39 weeks, while experiencing cramping and decreased fetal movement, Deborah Watts was seen by a third-year resident. Evidence at trial indicated that the physician did not perform appropriate tests, failed to notify Watts of the significance of decreased fetal movement and failed to perform any further diagnostic monitoring. That doctor's supervisor then signed off on Watts' course of treatment.

The next day, Deborah Watts was admitted to the hospital because of a lack of fetal movement and placed on a monitor, which showed fetal hypoxia and acidosis. The standard of care required an immediate cesarean section delivery, but that did not occur for more than an hour and a half.

Naython was born with catastrophic brain injuries because of a lack of oxygen. Naython will never walk and has difficulty feeding himself. Naython will live his entire life dealing with the pain, suffering, teasing and lost aspects of everyday life most of us enjoy. These are just some of Naython's "non-economic damages."

Prior to 2005, the caps adjusted for inflation and were approximately $579,000. In 2005, the legislature further restricted them to $350,000, eliminated adjustment for inflation and applied a single cap. Effectively, the Legislature took away the jury's ability to fully compensate an injured victim.

In overturning the cap, the court preserved and upheld the right to trial by jury that has been held inviolate in Missouri since its original constitution in 1820. The Supreme Court confirmed that the right to trial by jury includes the duty of the jury to determine actual damages inflicted on the injured victim.

Claims of a litigation crisis, excessive jury awards and doctors fleeing Missouri were the constructs of business interests, insurance companies and medical associations. In fact, a collection of 18 independent scholars, led by Professor Neil Vidmar, filed an amicus brief demonstrating this alleged crisis simply never existed.

Statistics show that the number of patient-doctors in Missouri has steadily increased over the past four decades. The American Medical Association's authoritative annual compendium — described as "the most complete and extensive source of physician-related information in the United States" — showed that the number of doctors actively practicing patient care in Missouri increased even during the periods of the alleged "litigation crisis."

Studies in other states have shown that medical malpractice damages caps limit constitutional rights without any of the supposed "benefits" used to justify their implementation. For example, a study of the $250,000 damages cap in Texas showed that there was no shortage of doctors before "reform" and no increase in doctors after "reform."

The Missouri Supreme Court's decision was a good one for all Missourians who believe in our Constitution and Bill of Rights. "The losses that we're talking about in these cases are the worst kind of losses — human losses," said Tim Dollar, president of the Missouri Association of Trial Attorneys. "Everyone who believes in the Constitution and the Bill of Rights should be thrilled with this decision because it protects children like Naython Watts."

Brett Emison is a member of the Missouri Association of Trial Attorneys Executive Committee and an attorney in Lexington.

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