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Image Source: Springfield News-Leader
Mo. Rep. Eric Burlison

Offensive.  Shameful.

Those were the first two words that came to my mind (along with a few others that are best left unprinted) as I read an article from the Springfield News-Leader in which Missouri state representative Eric Burlison compared a brain damaged baby to a Mega Millions lottery winner.


Talking about the “need” for caps on damages, Burlison said:

“It’s the same reason when the Mega Millions jackpot is at $500 million or up, people who don’t normally buy a lottery ticket will suddenly start buying a lottery ticket.”

– Rep. Eric Burlison via the Springfield News-Leader

Now, was Burlison talking about stopping frivolous cases?  No.  Because the caps he’s talking about don’t take effect until after the jury has determined the defendant doctor was liable and actually caused injury to the victim.  Burlison’s bill will do nothing to prevent frivolous lawsuits.

Specifically, Burlison was talking about Naython Watts, whose Supreme Court case overturned the unconstitutional cap on damages that Burlison wants to reinstate.  I wrote about Naython’s case when the Supreme Court decision was handed down:

The real story of this decision is not about trial lawyers. It’s not about insurance companies. It’s not about medical associations. It’s not about the Chamber of Commerce. It’s not about politics.

The real story is about Naython Watts. And it’s about every citizen’s right to seek redress from someone who has injured them.

Naython’s mother is Deborah Watts. During her pregnancy, Deborah was treated at a facility owned by Cox Medical Centers. At 39 weeks, Deborah was seen by Dr. Melissa Herrman, who was then a 3rd year resident. Watts was experiencing cramping and decreased fetal movement. At trial, the evidence indicated that Dr. Herrman did not perform appropriate tests, failed to notify Watts of the significance of decreased fetal movement, and failed to perform any further diagnostic monitoring. Dr. Herrman’s supervisor, Dr. William Kelly, MD, signed off on Dr. Herrman’s course of treatment.

The next day, Deborah Watts was admitted to the hospital due to lack of fetal movement. Watts was placed on a fetal monitor that morning, which showed fetal hypoxia and acidosis. The standard of care required immediate C-section delivery, but that did not occur until more than an hour-and-a-half later.

Because of the lack of oxygen, Naython Watts was born with catastrophic brain injuries. Naython is now 5 years old. He will never be able to walk and has difficulty feeding himself. Naython will live his entire lifetime dealing with the pain, suffering, teasing, and other lost enjoyment of normal, everyday life that the vast majority of us get to enjoy. These were Naython’s “non-economic damages.”

Mo. Supreme Court Upholds Constitution; Overturns Damages Caps

Naython Watts – and countless others like him – that’s who Burlison compared to Lotto winners.

Offensive.  Shameful.  Disgusting.

In Naython’s case, the Missouri Supreme Court confirmed that the Missouri Constitution ensured that “the right of trial by jury as heretofore enjoyed shall remain inviolate….”  [Mo. Const. Art. I, Sec. 22(a)].  In overturning the caps, the Supreme Court confirmed that the right to jury trial under the common law includes the duty of the jury to determine actual damages inflicted on the injured victim.  “The plaintiff has the full benefit of that right free from the reach of hostile legislation,” the Supreme Court held.

Apparently unconcerned about such constitutional restrictions, Burlison has filed a bill that would strip medical malpractice cases like Naython’s right out of the common law and replace it with a statutory cause of action that the legislature could meddle with at its leisure and whim without pesky constitutional concerns.  It’s also probably not that surprising to learn that Burlison has worked for CoxHealth – which ran the Lester E. Cox Medical Centers that were a defendant in Naython Watts’ lawsuit – and Cerner, an international healthcare technology company.  While at CoxHealth, Burlison described his activities as “a business analyst / problem solver.”

I’ve done this before (here and here), but it appears the need remains.  Let’s take a look at popular tort reform myths and why they are false.

Tort Reform Myth: Damage Caps Prevent Frivolous Lawsuits

False.  This is a favorite of folks like Burlison, the American Medical Association, and the Chamber of Commerce.  Here’s a tweet from American Medical News that came out shortly after the Watts decision.

AMedNews Tweet

It’s a popular myth.  But it’s not just false, it’s a pants-on-fire lie.

By definition, damages caps can only apply to cases with merit and which the plaintiff not only wins, but has suffered and is awarded substantial non-economic damages.

In order for unconstitutional damages caps – like those sought by Burlison – to apply, the following must occur:

(1) The jury must find the doctor, hospital, or other health care provider was liable for the injury (an actual cause-in-fact of the injury); and

(2) The jury must find that the injured victim suffered some non-economic loss or injury (an incomplete list of non-economic damages includes pain, suffering, mental anguish, disfigurement, loss of consortium, loss of care, loss of comfort, loss of support, lost enjoyment of life, etc.) that was caused by No. (1); and

(3) The jury must find that the value of the injured victim’s non-economic loss is greater than $350,000 over the victim’s lifetime.

These caps have absolutely nothing to do with frivolous lawsuits and it is disingenuous and outright misleading for anyone to suggest otherwise.

While these caps don’t restrict frivolous lawsuits, they do fundamentally restrict valid lawsuits and, instead of protecting innocent victims, these caps protect negligent doctors and hospitals from being held accountable and accepting responsibility for the damage they cause.  Burlison acknowledged as much in the News-Leader article, when he said that he saw “caps as a way of keeping the number of claims down.”

Burlison’s admitted and explicitly stated goal is to re-institute patently unconstitutional damages caps for the purpose of restricting valid claims against negligent doctors.

Offensive.  Shameful.  Disgusting.

Tort Reform Myth: Arbitrary Damages Caps Reduce Defensive Medicine and Lower Health Care Costs

False. The New England Journal of Medicine concluded that arbitrary damages caps do not lower health care costs, may result in more negative outcomes as doctors would not be held accountable for the full cost of medical errors.

Strategies to control costs associated with medical malpractice and defensive medicine must be responsible and targeted. These strategies must not impose arbitrary caps on damages for patients who are injured as a result of malpractice. According to the Congressional Budget Office, arbitrary caps on damages would reduce national health spending by only 0.5%. But although such caps would have a barely measurable effect on costs, they might adversely affect health outcomes.

– A Systematic Approach to Containing Health Care Spending, The New England Journal of Medicine

As the NEJM alluded, damage caps actually threaten to make the malpractice problem worse. Shirley Svorny, of the conservative Cato Institute (founded by in part by the Koch brothers, Charles and David Koch), has written, “[m]uch of the protection consumers have against irresponsible and negligent behavior on the part of health care providers hinges on oversight and incentives created by the medical professional liability insurance industry.” Thus, she concludes, damage caps “could result in more cases of negligence and substandard care.”

Tort Reform Myth: Without Caps Doctors Will Flee The State

False. Statistics from the American Medical Association show that the number of patient-treating physicians has steadily increased over the last 4 decades. This increase occurred both when viewed in terms of absolute numbers and relative to Missouri’s population.

Doctor-Patient Ratio MO - Vidmar

The data also showed an increase per capita for “high risk” specialties such as neurosurgeons and OB-Gyns.

Doctor-Patient Ratio MO - High Risk - Vidmar

Data from other states supports the conclusion that arbitrary damages caps do not affect the number of practicing physicians.

“Before Texas adopted tort reform in 2003, proponents claimed that physicians were deserting Texas in droves. After tort reform was enacted, proponents claimed there had been a dramatic increase in physicians moving to Texas due to the improved liability climate. We find no evidence to support either claim.

– Does Tort Reform Affect Physician Supply? Evidence from Texas

Tort Reform Myth: Damage Caps Reduce The Number Of Lawsuits

False. According to the St. Louis Post-Dispatch, In 2002 (prior to the lowered caps), there were 1,704 medical malpractice claims filed in Missouri courts. In 2010, (5 years after the lowered caps), there 1,760 malpractice suits.

Tort Reform Myth: Medical Malpractice Verdicts Will Skyrocket Without Caps

False. The average non-economic verdict paid out before the unconstitutional damage caps were put into effect was $314,000 and has not changed significantly under that law.

Constitutional rights should not be attacked, or demeaned, or trivialized for political gain or because one side lost a court battle. Constitutional rights are the cornerstone of our society and, as Missouri founders explicitly said, should remain inviolate.

The right to trial by jury – whether under the Missouri Constitution or the 7th Amendment of the United States Constitution – is the ultimate lynch pin for all other constitutional rights. Freedom of speech, freedom to keep and bear arms, freedom to contract, freedom of religion — all are ultimately protected by the freedom – inviolate in Missouri – to have your case heard in a trial by jury.

Tort Refom FACT: You Can’t Have Strong 2nd Amendment Without a Strong 7th Amendment

True.  If you’re going to support the 2nd Amendment… or the 1st Amendment… or any other amendment, you must support the 7th Amendment right to jury trial.

Burlison was named the 2013 Conservation Legislator of the Year and is active member of the National Rifle Association.  As a 2nd Amendment advocate and supporter, Burlison should be mindful of the need – indeed, the duty – to preserve all of our constitutional protections and not just the 2nd one on the list.

As Tea Party Nation founder, Judson Phillips and Tea Party advocate Andrew Cochran have said, “Real conservatives need to defend each and every God-given right enumerated in the Bill of Rights, and fight to maintain the limits on central power inherent in the Constitution.”

Too many Americans who claim to base their political decisions on the Constitution and Bill of Rights fold like a paper airplane when push comes to shove.  Too many of us pick our founding documents apart to choose which of the limits on power in the Constitution, or which of the ten amendments in the Bill of Rights, we back at any given moment.

– Andrew Cochran, “Capping Gun Rights & Jury Trials Equally Wrong

Cochran also wrote that “Liberals who love civil jury trials for their causes need to protect our right to bear arms, and conservatives need to protect the right to civil jury trials from crony capitalists who would abridge our right to a civil jury trial through ‘tort reform.’”

The sad fact is that not only is this kind of selective enforcement of constitutional principles illogical and indefensible, it’s completely unnecessary.  As the myths above show, damage caps like those supported by Rep. Burlison just don’t work.

We must preserve and protect each fundamental right if we are to protect any of them. Constitutional rights should not be attacked, demeaned, or trivialized for the political gain of an isolated lobbying group. Constitutional rights are the cornerstone of our society and, as Missouri’s founders explicitly said, should remain inviolate.

Naython Watts wasn’t a lottery winner.  He was a victim.  His life was stolen from him by a negligent doctor, who was inexperienced, who didn’t perform the correct tests, who failed to notify Naython’s mother of the significance of her symptoms, and who failed to perform any other monitoring.

Naython will never walk.  He has difficulty feeding himself.  He will live his entire lifetime dealing with the pain, suffering, teasing and other trials of the condition that was inflicted upon him.

And for this, Rep. Burlison compared him to a Mega Millions winner.

Offensive.  Shameful.  Disgusting.

Image Source: Springfield News-Leader

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© Copyright 2014 Brett A. Emison

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