ACE IN THE HOLE: OVERCOMING CAPS IN MISSOURI MEDICAL MALPRACTICE CASES

Lawyers in Missouri representing injured persons must, at times, find ways to overcome the harsh effects of legislative "caps" on "non-economic" damages in medical malpractice cases found in Mo. Rev. St. § 538.210. The cap is increased annually for inflation and is currently set at $513,000 "per occurrence." One approach our firm has used successfully to increase verdict and settlement potential of malpractice cases is to separate out the misconduct of a health care provider defendant into multiple "occurrences" of medical negligence. The viability of this approach, and the concern it raises for the defense that there may be more than one "occurrence" and therefore more than one non-economic cap of $513,000, increases the settlement value of such cases, where supported by the facts. This approach finds support in Missouri case law, specifically Romero v. U.S., 865 F.Supp. 585 (E.D. Mo. 1994).

In Romero, a Federal Tort Claims Act case brought against the government, the plaintiff argued there had been "multiple occurrences," each carrying its own separate cap, i.e., two separate instances of medical negligence by physicians employed at the Veteran's Administration Hospital in St. Louis. Presiding Judge Noce applied the substantive law of Missouri to the case. The key questions addressed were (1) whether the defendant, the United States, was a "health care provider" that could benefit from the cap on non-economic damages; and if so, (2) whether the statute provided one or two caps under the facts of the case.

Having answered the first question affirmatively, the Court then addressed how many "occurrences" of negligence there had been. Each "occurrence" would carry its own cap for non-economic damages under Section 538.210. The court explained that the word "occurrence" had not been defined in the statute, and noted that plaintiff had alleged multiple acts of negligence as follows:

The conceded malpractice in this case was pled as two separate claims. Plaintiff argues the first occurred between June 7 and 9, 1988, and was committed by the pathologist, and that the second episode of malpractice occurred on June 24, 1988, and was committed by the surgeons who were different doctors from the pathologist. Id. at 591.

Judge Noce ultimately ruled that there had been two separate "occurrences" in the case, resulting in a single injury. The pathologist's analysis and report of June 7-9, 1988, was a separate medical event from the subsequent surgery of June 24, 1988--and, therefore, there had been two independent "occurrences" of negligence. The Missouri Court of Appeals had ruled in Jines v. Young, 732 S.W. 2d 938, 944 (Mo.App. 1987), that certain elements were required to be met for proof of a prima facie case of medical negligence. With regard to each of the alleged "occurrences" of medical negligence in Romero, the requisite elements existed.

Under Section 538.210, each separate defendant has a separate cap (unlike Kansas, where a single $250,000 cap applies no matter how many defendants contributed to cause injury). Yet, the Romero court did not focus upon the fact that the actions of multiple doctors were at issue--because the United States was deemed to be one defendant under the statute. Rather, the court allowed for an additional cap because there had been multiple "occurrences." Accordingly, the court refused to reduce plaintiff's non-economic damages to one statutory limit.

When saddled with the limitation of one cap for non-economic damages in a medical malpractice case in Missouri in the future, plaintiff's counsel should consider whether one or multiple "occurrences" brought about the claimed injuries.

The reason is the "cap trap," which is lurking in all of these cases. Juries are not told of the $100,000 cap on non-pecuniary losses (i.e., grief and bereavement) and may inadvertently put a large amount on that line of the verdict form, causing the jury to pay less attention to the Wentling losses thinking that they have already adequately compensated the plaintiffs. When judgment is entered, the non-pecuniary verdict is then reduced to $100,000 based on the cap, which could wipe out the bulk of the verdict.

Now that the wrongful death cap has been raised to $250,000, the stakes of waiving the non-pecuniary damages have been raised. It is our belief that waiving the non-pecuniary cap does not make sense with the $250,000 limit in most cases; however, it still may be a wise, although risky, strategy in the right case.

We have summarized a few cases in the accompanying chart which demonstrate the value of Wentling damages. Please let us know of your Wentling settlements or verdicts.