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Flashbacks and Foreshadowing on Medical Malpractice Laws

By: Travis H. Brown and David M. Jackson

On Tuesday, July 31st, 2012, the Missouri Supreme Court struck down a portion of state law that caps non-economic damages in medical malpractice lawsuits at $350,000. Often referred to as “quality-of-life damages,” non-economic damages represent intangible harms (such as emotional distress or loss of enjoyment of life) that an injury has caused. Physicians often advocate for caps on medical malpractice lawsuits to prevent the practice of defensive medicine and a shotgun approach from trial attorneys who might be incentivized to name innocent doctors in frivolous lawsuits. Defending a lawsuit can cost $110,000 in trial costs alone, with an average of $15,000 even when a claim is dropped or dismissed.

Our firm, which has more than two decades of experience in state lobbying, represents a wide variety of physician specialty and medical groups that played a significant role in the passage Missouri’s of tort reform law in 2005.  Their focus was, and continues to be, providing Missourians with access to quality care at an affordable cost. Travis H. Brown, our principal lobbyist at Pelopidas, is featured in this 2004 Ingram’s Magazine article as he discusses the direct impact medical malpractice laws can have on obstetricians, neurologists, and other physician specialties practicing on the state line between Kansas City, Missouri and Johnson County, Kansas.
We were successful in passing medical malpractice reform laws in 2003 and 2004 in the legislature; however, both bills were vetoed by Democratic Governor Bob Holden. On March 29, 2005, newly elected Governor Matt Blunt signed House Bill 393 into law in our third, and what looked like to be our final, attempt. That forecast might change after the recent decision by the Missouri Supreme Court that ruled caps on medical malpractice lawsuits unconstitutional on the premise that they violate an individual’s right to trial by jury in Article I, Section 22(a) of the Missouri Constitution.

The impact of large jury verdicts can impact the health care community in several ways. More verdicts often result in more lawsuits, more fear, and more unnecessary tests from doctors who have to juggle liability concerns instead of solely focusing on providing safe and effective care at the lowest cost possible. The U.S. Department of Health and Human Services estimates that unnecessary medical tests cost our nation between $70 billion and $126 billion annually. According to the Physician Insurers Association of America, payments made to plaintiffs of $1 million or more increased from less than 1% in 1985 to 9.3% in 2010.Large jury verdicts have also caused several physicians to settle on cases where they might not have provided negligent care. Because a medical malpractice insurance company is unlikely to have a policy that covers a $20 million payout, doctors can be forced to give up and avoid the risk of going bankrupt, losing personal assets, and facing excess court fees.Our country is already facing a shortage of health care providers that has prompted concerns about access, rising costs, and, most importantly, patient safety. The increased liability associated with the removal of caps on non-economic damages could be counterproductive in solving these issues by driving providers to other states, increasing costly and unnecessary procedures, and encouraging medical students to choose their specialty based on liability rather than public demand.A recent poll published in The Hill reports that large majorities of U.S. voters believe medical malpractice lawsuits are driving away good doctors. Furthermore, 75% believe malpractice suits are contributing to the high cost of insurance and medical care.

As a multi-specialty government relations firm, our team at Pelopidas, LLC, is dedicated to promoting statutory or constitutional solutions in tort reform that will provide the highest return in patient safety and access to quality care. With an experienced lobby team, detailed ballot initiative division, and state-of-the-art-media lab, we are well equipped to represent clientele who want to provide a healthy climate for all Missourians.

Read More Here in “Across the Great Divide; Missouri’s Medical Malpractice Crisis” -2004, Ingram’s, Kansas City’s Business Magazine