On Tuesday, July 31st the Missouri Supreme Court handed down a singularly significant decision holding that the legislature’s limitation or cap on medical malpractice jury decisions was unconstitutional because such law deprived an injured person of their “inviolate” constitutional right to a trial by jury.  The right to a trial by jury in civil cases has been enshrined in our Missouri Constitution from its inception.  This decision removes the strident $350,000 limitation or cap on non-economic damages that had been imposed by the legislature that had only applied in medical malpractice cases.  Medical malpractice cases involve the negligence in the care and treatment rendered to patients by doctors, hospitals, and other heath care providers.  Decisions heretofore permitting the limitation or cap are no longer to be followed.  Included in the category of non-economic damages are pain, disability, disfigurement, and loss of enjoyment of life.
The Supreme Court decision was extremely well reasoned and once and for all put to an end the senseless limitations on recovery for grievously injured individuals who have lost their sight, or limbs, or suffered brain damage permanently by negligent or careless conduct.

The Missouri Legislature has voted to “reform” the Missouri Nonpartisan Court Plan, a system designed for the selection of judges based on merit rather than on politics.  The Plan’s inception in 1940 was roused by the corruption and widespread abuses of the judicial system…namely, the increasing role of politics in judicial selection and decision making.  The plan was integrated into the Missouri Constitution in 1976.  Today, the independence of our judiciary, which has been secured and safeguarded by the Missouri Nonpartisan Court Plan for over 70 years, is threatened by proposed resolution SJR51.
SJR51, passed in both the House and Senate, will appear on the November ballot as a referendum to amend the Missouri Constitution’s Nonpartisan Court Plan.  Proponents of the “reform” claim the change will take power away from special interests and return it to the citizens of our state.  Are they correct?  To whom is this “power” returning?
Under the current Missouri Nonpartisan Court Plan, the judicial panel for the Supreme Court and Court of Appeals is selected by the Appellate Judicial Commission.  The Appellate Judicial Commission is composed of:  three lawyers elected by the lawyers of the Missouri Bar for six year staggered terms, three citizens appointed by the Governor for six year staggered terms, and the Chief Judge of the Supreme Court.  Those seven members choose three people after reviewing their applications, letters of recommendation, and the public interviews; the Governor then chooses a judge from those final three.  The appointed judge, after being on the bench at least one year, then stands for a retention election in the next general election.  At that time, voters have a chance to say whether or not a judge will stay in his or her position.
Lawyers                                Governor                             Judiciary
                                LLL                                       GGG                                      J              →            1, 2, 3
                                                                                                                                                                ↓
                                                                                                                                                Governor’s choice wins
Under the proposed resolution, SJR51, the composition of the Appellate Judicial Commission will change.  First, the Chief Judge of the Supreme Court will no longer be a member; rather, a retired judge will be a non-voting member.  Second, four citizens will be appointed by the Governor; two when the governor is sworn in, and two after two years of being in office.  The three lawyers elected by lawyers will remain the same.  The resolution will allow the Governor to have control of the Appellate Judicial Commission (4 to 3) within two years of being in office.
Lawyers                                Governor                            
                                LLL                                       GGGG                                                   →            1, 2, 3
                                                                                                                                                                ↓
                                                                                                                                                Governor’s choice wins
The proponents of SJR51 are incorrect; the resolution will not return power to the citizens.  SJR51 will return power to the Governor.   It removes the single judicial vote from the commission and gives that vote (along with majority) to the Governor.  The “reform” will tip the scales (4 to 3) in favor of politics.
SJR51 threatens the independence of our judiciary.  We oppose it.

Statistics from recent years provide information that over 98,000 deaths have occurred in hospitals due to medical errors (malpractice); and this does not include injuries both inside and outside of hospital settings caused by medical errors.

In view of such alarming statics, surprisingly our Missouri State Legislature, especially by actions in 2005, have passed laws that severely limit the monetary recoveries that an injury person or family can receive in meritorious cases for death and grievous injuries caused by medical negligence, malpractice conduct. These severe limitations have negatively impacted patient’s rights and have had a chilling effect on individuals pursuing legitimate cases for medical error.

From the legal perspective and from the rule of law perspective, these limitations have overlooked and violated basic fundamental constitutional rights to an inviolate right to a trial by jury, equal protection of the law, and the separation of the powers between the legislative and judicial branches of government.

However, there is currently a legal challenge that has been made on the basis of the violation of these basic constitutional rights in the case of Watts v. Cox Medical Center. In view of these strident limitations and caps that the legislature has imposed on these types of cases, there is no wonder that the Bar and public at large, now await in hopeful anticipation that the Missouri Supreme Court will sustain the challenge, and by judicial decision reverse the unconstitutional restraints and limitations that have been imposed by this legislation. A decision in this regard is expected over the next couple of months.