For years, Missouri has been the poster child for the failure of “caps” on damages to solve doctors’ insurance problems. In 2004, the American Medical Association identified Missouri as a so-called insurance “crisis state,” even though the state had severely capped non-economic damages in 1986. The cap, originally $350,000, was adjusted annually for inflation until 2005, when it was knocked back down again and broadened for reasons that appear purely punitive against injured patients. That’s because according to Missouri’s insurance department, by 2003, while claims and payouts had already dropped dramatically for the state’s insurance industry, doctors’ malpractice insurance premiums were dramatically rising.
During the recent “soft market” when premiums for doctors were dropping everywhere in the nation irrespective of a state's tort law, premiums increased in Missouri while dropping in Iowa - a neighboring state that never had a cap. (See more in this Americans for Insurance Reform report.)
In other words, the only thing this cap ever did was harm seriously injured Missouri patients. Yesterday, 26 years after this cap was first enacted into law, the Missouri Supreme Court struck it down as unconstitutional, finding “any limit on damages that restricts the jury’s fact-finding role violates the constitutional right to trial by jury.” It also invalidated the state’s periodic payment provision. And in doing so, this court joined many other state Supreme Courts that have issued similar rulings, like neighboring Ilinois.
In its coverage of this decision, the St. Louis Post Dispatch quotes a courageous friend of ours, Sue Stratman:
[Stratman] testified against the 2005 law. Stratman's son, Daniel, now 27, suffered severe brain damage from a medical error during surgery at St. Louis Children's Hospital in 1996. Stratman, who settled with the defendants in their case, estimates the family has since spent millions of dollars on Daniel's care.
"What a victory for victims," Stratman said. "We're not talking about frivolous lawsuits here, we're talking about serious medical malpractice injuries that affected my son for the rest of his life. He will never be able to live on his own, he will never be able to work, he requires 24-hour constant care. If this were your son, how much is too much?"
Indeed, Sue and Daniel Stratman are among the true heroes in this story. And they not only fought Missouri’s cap, they also joined other medical malpractice survivors nationwide in making the difficult journey to Washington DC to fight Congress’ attempt to cap damages even lower than Missouri’s unconstitutional law. Here’s a story Sue once told us about her experiences:
Daniel and I were among the sea of doctors in white coats who were [at the state capitol] to pressure Senators to override the Governor’s veto [of the expansion of the cap law]. I don’t know what those doctors were thinking as they saw me push Daniel around the Capitol building in his wheelchair. But one white-coated doctor apparently hadn’t a clue.
He handed Daniel a red, heart-shaped “stress ball” with a logo printed on it. The ball was like the tools that Daniel uses in physical therapy to regain and maintain strength and dexterity that he has lost in his hands because of the medical malpractice. But when I read the logo on the ball, I wanted to throw it back at that doctor! It read “Malpractice Squeezing Missouri Medicine. --Mid-America Medical Affiliates.”
That logo begs the question, “If medical malpractice is squeezing doctors so much, why don’t they stop committing it?”
What the message on that stress ball really suggests is that premiums and lawsuits are “squeezing” doctors and, therefore, the State of Missouri should take injured patients’ rights away. Nowhere in the doctors’ message is there concern about stopping the medical malpractice practice that almost killed Daniel, and permanently harms and kills so many patients. The nerve of these doctors who think that they are the victims of medical malpractice. I would like the doctor who handed Daniel that ball to spend one day in my son’s wheelchair, and then tell me who the real victim is.
Nothing really more to say.
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