Wednesday, August 1, 2012

More on the Missouri Supreme Court decision declaring damages cap unconstitutional

Yesterday I reported that the Missouri Supreme Court declared unconstitutional that state's statute that imposes a cap on non economic damages in medical malpractice cases.  See here

Today, the PopTort has posted a bit more information on the case and the issue here.  It turns out that Missouri provides a good example of why capping recovery for victims does not necessarily result in reducing insurance premiums. 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 rising.

Not surprisingly, however, tort reform support groups have criticized the decision.  See here.  In this report, the president of the American Tort Reform Association said the opinion was written by the court's "activist majority" and is quoted as saying that “Missouri is an outlier again, joining a minority of states in which high court decisions have stymied elected legislators and governors who had acted reasonably to limit pain and suffering awards when state constitutions did not explicitly disallow such limits.”

In statements like those, ATRA wants to imply that courts that rule against their positions are "radical" or "activist" which are not following the law. This characterization of the court's decision is unfair and misleading. The fact that a legislature enacts a statute does not by itself mean that the statute is valid and should be respected. We need courts in order to determine if a statute is unconstitutional.  Otherwise there would be no check on the power of a legislative body.

In deciding the constitutionality of a statute, the Missouri Supreme Court performed its role in our democratic system.  ATRA's argument seems to be simply that courts should not question or second guess what legislators do. That is a dumb argument. If you don't agree with the decision, argue it on the merits.  Don't just start name calling and saying the court had no right to do what it did.  Of course it did.  That's what courts are for.

The report from ATRA is also quoted as stating that reform is needed "if the cost of and access to health care in Missouri is to help the state compete for jobs and economic growth” a notion that has been discredited so many times in some many studies it is almost laughable anyone is still trying to advance it.

1 comment:

Anonymous said...

Professor, before dismissing those who think this is an acitvist court as "dumb," perhaps you should reflect on the dubious rationale adopted by these three recent Democratic appointees (and a fourth trial court judge they brought in just for this decision), and recognize that this case overruled an earlier 6-1 decision by the same court on precisely the same constitutional issue that had stood for 20 years.