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Health, Science, Environment

Missouri and Illinois may reconsider medical malpractice caps

This article first appeared in the St. Louis Beacon, Dec. 7, 2009 - Illinois and Missouri are two of at least five states where supreme courts are considering the constitutionality of caps on damages inmedical malpractice cases. The other states are Maryland, Georgia and Oklahoma.

The Illinois case -- Lebron vs. Gottlieb Memorial Hospital -- was argued last year. The Illinois Supreme Court has previously thrown out damage caps as a violation of the separation of powers between the legislature and the courts. But the current state Supreme Court might be more amendable to damage caps since the 2004 election of Justice Lloyd A. Karmeier. Karmeier's election was widely interpreted as a rejection of big damage awards, including those in medical malpractice cases.

The Missouri case, which will be argued in January, could turn on the narrow issue of whether a 2005 law lowering caps on damages should apply retroactively to limit the non-economic damages that a jury awarded to a man who suffered severe medical complications in 2004 after an implanted pacemaker became infected.

The Missouri case arises from the St. Louis area. James Klotz and his wife Mary won a jury award totaling about $2.5 million from Dr. Michael Shapiro, the Metro Heart Group and St. Anthony's Medical Center. The appeal involves the non-economic damages, which initially were about $1 million. The trial judge applied the 2005 law -- passed after the medical procedure but before the trial -- to reduce non-economic damages for Michael Shapiro from about $500,000 to $234,000 and for Mary Shapiro from $220,000 to zero.

The 2005 law was a major win for former Gov. Matt Blunt who came to office promising to enact tort reform and impose damage caps. It limited non-economic damages in medical malpractice cases to about $350,000.

The Klotzes argue that the law should not have been applied retroactively to the 2004 medical procedure. They also challenge the law on an assortment of other grounds, including the arguments used in Illinois -- that caps are a violation of the separation of powers and a person's right to trial by jury.

Those arguments have worked before in Illinois. Twice before, the state Supreme Court has struck down a similar law, the last time in a 1997 ruling that the legislature was interfering with the judiciary.

A lower court judge in Cook County used that same legal reasoning to strike down the current law, which limits non-economic damages to $500,000 against doctors and $1 million against hospitals.

The judge ruled in 2007 in a suit brought by the family of Abigaile LeBron who claimed that Gottlieb Memorial Hospital in Melrose Park and a doctor there did not act quickly enough when Abigaile's mother began showing problems during her October 2005 birth. Abigaile suffered developmental problems.

Edward J. Kionka, an emeritus law professor at Southern Illinois University, was one of 24 law and social science professors in Illinois who filed a brief opposing the medical malpractice caps in Illinois. They challenged the claims of doctors and hospitals that uncapped jury awards cause big spikes in malpractice insurance driving doctors out of Illinois. They provided statistics to show that the number of doctors steadily increased in Illinois even without caps.

The ABA also has filed a brief in opposition to the Illinois caps, arguing that lawyers are unlikely to take meritorious cases if the damages are limited by caps. Lawyers often take malpractice cases on a contingency basis, meaning the fee is related to the size of the award.

In the Missouri case, Washington University, Saint Louis University and Missouri University have filed briefs on behalf of the law with caps. They argue that the law is important to limiting medical costs at the university hospitals they operate.

Click here for more about medical malpractice cases around the country.

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