Opposition Brief — Adams ex rel. Ridgell v. Children's Mercy Hospital

Supreme Court brief1992

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No. 92-533

In The

Supreme Court of the United States

October Term, 1992 : :

NICOLE ADAMS, a Minor Child, By and Through

Her Next Friend, BETTY RIDGELL, and

BETTY RIDGELL, as Representative of the

Estate of JULIA ALICE ADAMS,

Petitioners,

THE CHILDREN’S MERCY HOSPITAL and

JANE JELINEK-BOOZALIS, M.D.,

Respondents.

Petition For Writ Of Certiorari

To The Supreme Court Of Missouri

RESPONDENT THE CHILDREN’S MERCY

HOSPITAL'S BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

October 26, 1992

Ftoyp R. Fincn*

TimotHy M. AyYLWwARD

Satty L. THIEMAN

BLACKWELL SANDERS MATHENY

Weary & LOMBARDI

Two Pershing Square

Suite 1100

2300 Main Street

P.O. Box 419777

Kansas City, Missouri

64141-6777

(816) 274-6800

Attorneys for Respondent

The Children’s Mercy Hospital

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO. (B00) 225-6964

SEE

QUESTIONS PRESENTED

1. Does this Court have jurisdiction to issue a writ of

certiorari, pursuant to 28 U.S.C. § 1257, when the specific

constitutional questions at issue were not presented to

the state court below, in a timely manner, to enable the

state court to pass on those questions?

2. Is a substantial federal question presented by the

Petition for Writ of Certiorari in light of the fact that this

Court has refused to review similar statutes from other

states limiting damage awards in medical negligence

cases on the grounds that no substantial federal question

was presented thereby?

3. Is the Due Process Clause of the Fourteenth Amend-

ment violated by a state statute which merely modifies,

but does not abrogate, a common law cause of action?

4. Is the Equal Protection Clause of the Fourteenth

Amendment violated by a state statute which, in limiting

recovery of noneconomic damages in medical malpractice

actions, neither impacts a suspect class nor impairs a

fundamental right?

PARTIES TO THE PROCEEDINGS

The parties to these proceedings are as indicated in

the caption of the Petition for Writ of Certiorari, with the

exception of Suzanna Roushar, R.N., and Cynthia Dooley, ~

R.N. Petitioners have listed Ms. Roushar and Ms. Dooley

as parties although they did not participate in the appeal

in the Missouri Supreme Court below.

Both Ms. Roushar and Ms. Dooley received verdicts

in their favor in the trial of this cause. Petitioners, plain-

tiffs below, did not preserve any claim of error as to

either of those defendant’s verdicts. The time for preserv-

ing any such claim of error for appeal has long since

passed. Neither Ms. Roushar nor Ms. Dooley joined in the

hospital’s appeal in the Missouri Court of Appeals.

Therefore, they are not parties to this appeal and are no

longer parties to this action.

sto

ili

TABLE OF CONTENTS

Page

CORTE Ee PMN EDD occ ieee ccs nsecnccenines i

PARTIES TO THE PROCEEDINGS ................. ii

py ae oy ye oy |). en Vv

STATEMENT OF THE CASE.............cccccccases 1

REASONS FOR DENYING THE WRIT............- 3

I. A WRIT OF CERTIORARI SHOULD BE

DENIED DUE TO PETITIONERS’ FAILURE TO

RAISE THEIR CONSTITUTIONAL CHAL-

LENGE IN A TIMELY MANNER SO IT COULD

BE PASSED UPON BY THE STATE COURT... 5

Il. A SUBSTANTIAL FEDERAL QUESTION IS

NOT PRESENTED BY THIS PETITION........ 8

Ill. SECTION 538.210 DOES NOT VIOLATE THE

DUE PROCESS CLAUSE OF THE FOUR-

TEI ith AMENDMENT .... 2... escccesccccnns 13

A. The Due Process Clause of the Fourteenth

Amendment Does Not Prohibit a State Legisla-

ture From Modifying the Common Law..... 13

B. Due Process Does Not Require a Quid Pro

Quo or Reasonably Just Substitute When

Modifying a Rule of Common Law ....... 15

C. Section 538.210 Is Not Arbitrary or Capri-

. 17

IV. SECTION 538.210.1 DOES NOT VIOLATE THE

EQUAL PROTECTION CLAUSE OF THE FOUR-

TEENTH AMENDMENT ...................0-- 19

aaa |

TABLE OF CONTENTS - Continued

Page

A. A Statute That Applies a Cap to Non--

economic Damages Applicable Only in

Medical Malpractice Lawsuits Does Not

Impact a Suspect Class or Impair a Funda-

mental Right .............esceeeceeeeeeees 19

B. The Cap Is Rationally Related to a Legiti-

mate Governmental Objective ...........-- 21

C. Heightened Scrutiny Is Inapplicable, Nev-

ertheless the Cap Provision Survives Its

Application ...........---eeeeee cece eens 23

D. There Is No Split of Authority Among the

Federal Courts Regarding the Validity of

Statutory Caps on Noneconomic Damages a

in Medical Malpractice Cases ..........--- 25

CR ik eis e sks dees Lineree deeds Varennes 27

APPENDIX A

Motion to Bar Enforcement of Chapter 538 with

Suggestions in Support.........-...--ee secre ee eee la

APPENDIX B

Statistical Data on Claims in Missouri, 1983-90... 24a

TABLE OF AUTHORITIES

Page

Cases:

Adams v. Children’s Mercy Hospital, 832 S.W.2d 898

(Dla. BOOB) noc vv cics hua vducsevscasnceseeeneuereeen 18

Arneson v. Olson, 270 N.W.2d 125 (N.D. 1978) ....... 26

Baptist Hospital of Southwest Texas, Inc. v. Baber, 672

S.W.2d 296 (Tex. App. 1984) ........----e eee eens 23

Boyd v. Bulala, 877 F.2d 1191 (4th Cir. 1989)...... ys

Callier v. Director of Revenue, 780 S.W.2d 639 (Mo.

Dene IGOR) un ok d ces vs ccc ivan cvaphawss eeneeey aa 5

Cardinale v. Louisiana, 394 U.S. 437 (1969) ............ 8

Clark v. Jeter, 486 U.S. 456 (1988).............22- 0 24

Craig v. Boren, 429 U.S. 190 (1976) .......-- +e eee eeee 24

Davis v. Omitowoju, 833 F.2d 1155 (3rd Cir. 1989) .21, 25

Duke Power Co. v. Carolina Environmental Study

Group, 438 U.S. 59 (1978) ..........-. eee eee passim

English v. New England Medical Center, Inc., 541

N.E.2d 329 (Mass. 1989), cert. denied, 492 U.S.

1056 (190B) ... 5. cavvasccvaey ceo eeeeneetceenaeree 8, 11

Erie R.R. v. Tompkins, 304 U.S. 64 (1938)..........--. 12

Etheridge v. Medical Center Hospitals, 376 S.E.2d 525

(Wir. POUDD i vscccceec cnccdeccsucueueces es eeeeeee 22, 25

Fein v. Permanente Medical Group, 695 P.2d 665

(Cal. 1985), appeal dismissed, 474 U.S. 892 (1985)

Pees Te 6, 10, li, 21, ©

TABLE OF AUTHORITIES - Continued

Page

Hoffman v. United States, 767 F.2d 1431 (9th Cir.

19GB) os 6sn vaunsnecagnes beeen 4 bag sn Seca wena een 25

Johnson v. St. Vincent Hospital, Inc., 404 N.E.2d 585

(inn. TSGG) os ivkudsn sd ieee ese eee eee eae 25

Jones v. State Board of Medicine, 555 P.2d 399 (Idaho

1976), cert. denied, 431 U.S. 914 (1977)........ 8, 9, 26

Land Clearance for Redevelopment Authority of Kan-

sas City v. Kansas University Endowment Associa-

tion, 805 S.W.2d 173 (Mo. banc 1991)..........-.- 2,5

Lucas v. United States, 807 F.2d 412 (5th Cir. 1986)

Sones ¥ bine be a RaKE ORE Ue Ea eee 13, 21, 2 2

Massachusetts Board of Retirement v. Murgia, 427

US. SOF tiSPeP ...iiac5ceceaeses eee 19, 20

McGowan v. Maryland, 366 U.S. 420 (1961)........... 20

McGuire v. C&L Restaurant, Inc., 346 N.W.2d 605

1) eer ee ee rey re tr 26

Meech v. Hilhaven West, Inc., 776 P.2d 488 (Mont.

BOOP) ov vvkn cans ass case se ues bau eee eee 26

Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456

4g | EERE ew 22

Missouri Pacific R. Co. v. Humes, 115 U.S. 512 (1885) .14, 15

Mobile, J] & K R Co. v. Turntpseed, 219 U.S. 39 (1910) .... 17

Mondou v. New York, New Haven and Hartford R.R.

Co., Zao WR TR ke een 13

New York Central Railroad Co. v. White, 243 U.S. 188

Vi) AEE PEPReP ere ry re oor er 13, 15, 16

Pendergast v. Nelson, 256 N.W.2d 657 (Neb. 1977) .17, 25

Vii

TABLE OF AUTHORITIES - Continued

Page

Pfost v. Montana, 713 P.2d 495 (Mont. 1985) ......... 26

Plyler v. Doe, 457 US. Baz (1962)... 0c ce cescvccees 24

Pruneyard Shopping Center v. Robins, 447 U.S. 74

i Saeane ore or nine Py een ree gree ye 15

Romero v. J&] Tire, JMH, Inc., 777 P.2d 292 (Mont.

SOI Su Nadi S sg hanks assovnweb cues seeEeuweRcarecus 26

San Antonio School District v. Rodriquez, 411 U.S. 1

1: PR epee cr ens are rey ee. ahr Weare tone @wUra yey 20

Securities Acceptance Corp. v. Hill, 326 S.W.2d 65

iS Sere UNREST Ese Cu REEN RRS ENTERS 5

Sibley v. Board of Supervisors of Louisiana State Unt-

versity, 462 So.2d 149 (La. 1985) ...............66- 25

Siiper o. Séifoer, 250 WS. TE CUSED) «...eeecece cc caesc. i7

Sproles v. Binford, 286 U.S. 374 (1932).............4-. 19

United States v. Carolene Products Co., 304 U.S. 144

Lo Pe a rere eer TiS Peery rrr cerry Terre 21

Usery v. Turner Elkorn Mining, 428 U.S. 1 (1976)..... 14

Waggoner v. Gibson, 647 F. Supp. 1102 (N.D. Tex.

i ee ere er Peery eer renee errs ee 23

Watson wu Buck, 313 US. 367 (1940). ........ 00055. 14, 18

Webt o. Webb, 451 U'S. 493 (1961). ........ cn cvecsss 6, 7

Weber v. Aetna Casualty «’ Surety Co., 406 U.S. 164

CO ik oes aca eae oe ee a hae eee eee 19, 24

viii

TABLE OF AUTHORITIES - Continued

Page

West v. Louisiana, 194 U.S. 258 (1903)................ 14

Wright v. Central DuPage Hospital Association, 347

sree: 2 S| ee eee ere rae 23

STATUTES AND CONSTITUTION

eR Be Eee ca rund nado ek esa Rss Roar e nets 6, 8

Ra Soe | reir errr rater pa 3, 22, 27

ee eS eS ee ee re 11

Cae Soe OE cap cae ceeds ohn aseun eevee s 10

ae ee Eee rereerea rn ree rn oe re 9

OE 8 Ee eee ee ee ee 9

ee Ae Oe ls cos orcs roca obs cuke neuen 10

es Se aa se i os ie ony cs tae kes 11

ee ey ne ee CN 6 ec Se Ea ees 14

oe A es |) eee passim

Rae ee ee CUED ance shed ee hiv eens i, 2

Mo. Rev. Stat. §§ 538.205-538.235 (1986)............. 16

bE a ee er er rar eee 13

STATEMENT OF THE CASE

Respondent The Children’s Mercy Hospital has

reviewed the Statement of the Case in the Petition for

Writ of Certiorari and takes issue with some of petitioners’

assertions:

First, petitioners contend, at page 4 of their petition,

that the jury award to Nicole Adams of $13,905,000.00 for

noneconomic damages was reduced to $860,900, “a

decrease of $13,045,000.00,” by virtue of the “capping”

provisions of § 538.210.1.1 That statement is inaccurate.

Petitioner Nicole Adams’ award of $13,905,000.00

was first reduced by 62%, which represented that share of

the total fault which the jury apportioned to persons who

had been released by plaintiffs prior to trial, by virtue of

the operation of § 538.230.2 Therefore, Nicole Adams’

award of noneconomic damages was first reduced from

$13,905,000.00 to $5,283,900.00.3 Thereafter, by virtue of

1 All statutory cites are to Missouri Revised Statutes (Mo.

Rev. Stat.) unless otherwise indicated.

2 Petitioners have abandoned any constitutional challenge

to the validity of this statute. Petition for Writ, page 5. Section

538.230 provides, in pertinent part:

... the claim of the releasing person against other

persons or entities is reduced by the amount of the

released persons’ or entities’ equitable share of the

total obligation imposed by the court pursuant to a

full apportionment of fault under this section as

though there had been no release.

3 This figure represents 38% of the total award of non-

economic damages to Nicole Adams.

the capping provisions of § 538.210, the award of non-

economic damages was further reduced to $860,000.4

Second, petitioners recite, in footnote 2 on page 4 of

their petition, that defendants “opted” to assess fault to

released parties and therefore prior settlements worth

$5,505,779.00 were not applicable to the entry of judg-

ment. This is also inaccurate. The amounts of prior settle-

ments were not applicable to the entry of judgment, not

because of any “option” exercised by defendants, but

again by virtue of the operation of § 538.230.

Finally, petitioners also claim, at page 4 of their peti-

tion, that the federal constitutional questions were timely

raised at every stage of the proceedings. Respondents

disagree. The statutes in question were enacted in 1986.

Petitioners’ cause of action arose on March 30, 1988, more

than two years later. Petitioners filed their original peti-

tion on September 15, 1989. The case went to trial on

February 11, 1991. Petitioners did not first raise any

objection to the constitutional validity of any section of

Chapter 538 until February 5, 1991,5 less than a week

before trial.

Missouri law requires that constitutional challenges

be raised at the earliest opportunity that “good pleading”

permits. Respondents respectfully suggest that peti-

tioners’ constitutional challenge was not timely.

4 The maximum “cap” amount of $430,000, multiplied by

two defendants.

5 When petitioners filed their Motion to Bar Enforcement of

Chapter 538.

6 Land Clearance for Redevelopment Authority of Kansas City v.

Kansas University Endowment Association, 805 S.W.2d 173, 176

(Mo. banc 1991).

Additionally, petitioners never raised the issue of

whether the Due Process Clause of the Fourteenth

Amendment requires a “quid pro quo” in return for a

modification of the common law in either the trial court

or the Missouri Supreme Court. Petitioners have raised

that issue in their petition for the first time.

REASONS FOR DENYING THE WRIT

Petitioners seek to invoke the jurisdiction of this

Court pursuant to 28 U.S.C. § 1257(a). The sole issue

presented here is the constitutionality of the “capping”

provisions of § 538.210 in light of the Due Process and

Equal Protection clauses of the Fourteenth Amendment.”

Petitioners have not raised their constitutional challenges

in a specific and timely manner. They first made a general

objection to the constitutional validity of Chapter 538 as

violating their rights to due process and equal protection

under the “Bill of Rights.”® Petitioners first raised the

specific question of whether the Fourteenth Amend-

ment’s guarantee of due process required the legislature

to provide a “quid pro quo” in return for a modification of

the common law in their petition for writ of certiorari.

Therefore, the Missouri Supreme Court did not have an

opportunity to pass on this specific issue. Because the

issues now presented by petitioners are untimely, the writ

should be denied.

7 Petition for Writ, page 5.

8 Petitioners’ Motion to Bar Enforcernent of Chapter 538

with Suggestions In Support, Appendix A.

The analysis which this Court employs to determine

whether a statute violates either the Due Process or Equal

Protection clauses of the Fourteenth Amendment has

been clearly delineated in prior opinions, leaving no

room for any genuine question about the constitutional

validity of this statute. The very same issues raised in the

petition for writ have been urged upon this Court in the

past, and this Court has repeatedly found that these

issues do not present a substantial federal question.

Because no person has a vested property interest in

any rule of common law, the legislature’s modification of

the common law does not amount to a “taking” so as to

infringe upon any person’s right to due process. And a

statute which merely modifies a common law cause of

action, but does not completely abrogate or replace it,

need not provide a quid pro quo to avoid constitutional

infirmity.

Furthermore, a statute which limits recovery of non-

economic damages in medical malpractice actions neither

impacts a suspect class nor impairs a fundamental right,

and therefore the legislature need only have had a ratio-

nal basis for the enactment to avoid violation of the Equal

Protection Clause of the Fourteenth Amendment.

As none of the provisions of § 538.210 are repugnant

to the Constitution, certiorari should be denied.

I. A WRIT OF CERTIORARI SHOULD BE DENIED

DUE TO PETITIONERS’ FAILURE TO RAISE

THEIR CONSTITUTIONAL CHALLENGE IN A

TIMELY MANNER SO IT COULD BE PASSED

UPON BY THE STATE COURT

Respondents respectfully urge this Court to deny the

requested writ of certiorari because the petitioners failed

to raise their constitutional challenges in a timely manner

under Missouri law, and thereby deprived the Missouri

Supreme Court of the opportunity to pass on the issue

petitioners now press upon this Court. Petitioners did not

urge the unconstitutionality of any provision of Chapter

538 in the proceedings below until filing their Motion to

Bar Enforcement of Chapter 538 just six days before trial.

Nonetheless, the disputed statute had been in existence

for two years before petitioners’ cause of action had

accrued, and for five years by the time petitioners first

raised any objection to it. Raising constitutional questions

in this manner failed to satisfy clear and fundamental

requirements of Missouri law:

It is firmly established that a constitutional

question must be presented at the earliest possible

moment “that good pleading and orderly pro-

cedure will admit under the circumstances of

the given case, otherwise it will be waived.”

Callier v. Director of Revenue, 780 S.W.2d 639, 641 (Mo.

banc 1989) (emphasis added) (quoting Securities Acceptance

Corp. v. Hill, 326 S.W.2d 65, 66 (Mo. 1959)). See also Land

Clearance for Redevelopment Authority of Kansas City v. Kan-

sas University Endowment Association, 805 S.W.2d 173, 176

(Mo. banc 1991).

In addition, the petitioners never raised the issue of

whether the Fourteenth Amendment’s guarantee of due

process required a state legislature to provide a “quid pro

quo” when modifying the common law at any stage of the

proceedings below.’

This Court has repeatedly held that certiorari should

be denied in instances where a constitutional issue is

raised for the first time with this Court, without having

given the state court below the opportunity to pass upon

the issue. Webb v. Webb, 451 U.S. 493 (1981). In Webb, this

Court dismissed a writ of certiorari for want of jurisdic-

tion after it determined that the question presented by

petitioner - whether a Georgia court was required by

Article IV of the United States Constitution to give “full

faith and credit” to the judgment of a Florida court in a

child custody dispute - had not been raised im the Geor-

gia Supreme Court below.

In reaching its decision, this Court commented:

Because this case comes to this Court from a

state court, the relevant jurisdictional statute is

28 U.S.C. § 1257... that statute requires that in

state courts petitioner have “specially set up or

claimed under the Constitution .. . of . . . the

United States” that right which she now seeks to

enforce . . . Similarly our Rule . . . requires the

petitioner to “specify the stage in the proceed-

ings, both in the court of the first instance and

9 Petitioners did not raise the “quid pro quo” argument

under the 14th Amendment in the pre-trial Motion to Bar

Enforcement of Chapter 538, nor in the post-trial Motion to

Modify Judgment, nor in their appeal to the Missouri Supreme

Court.

a a ee

in the appellate court, at which the federal ques-

tions sought to be reviewed were raised; the

method or manner of raising them and the way

in which they were passed upon by the court.”

Id. at 495 (emphasis added).

The federal questions which petitioners herein now

seek to have reviewed by this Court are (1) whether the

Due Process Clause permits “caps” on recoveries without

any guid pro quo, and (2) whether the Equal Protection

Clause prohibits a statute which discriminates against

plaintiffs in medical negligence cases, and further creates

“a discriminatory subclass of persons within the class of

medical malpractice victims.”!° Neither of these precise

questions were “specially set up or claimed” as mandated

by the holding of Webb:

It is a long-settled rule that the jurisdiction of

this Court to re-examine the final judgment of a

state court can arise only if the record as a

whole shows either expressly or by clear impli-

cation that the federal claim was adequately

presented in the state system.

451 U.S. at 496-497.

Following well-established precedent, developed

over the years with an eye toward comity between the

states and the federal government, this Court held in

Webb:

Citing a long history of cases, . . . “[t]he Court

has consistently refused to decide federal consti-

tutional issues raised here for the first time on

review of state court decisions.”

10 Petition for Writ, pp. (i), 26.

Id. at 499 (quoting Cardinale v. Louisiana, 394 U.S. 437, 438

(1969)).

In light of Webb, respondent respectfully suggests

that the Court lacks jurisdiction under 28 U.S.C. § 1257 to

review this case, and the writ of certiorari should be

denied.

II. A SUBSTANTIAL FEDERAL QUESTION IS NOT

PRESENTED BY THIS PETITION

A substantial federal question, warranting this

Court’s review, is not presented by this petition. In fact,

this Court has refused to review the constitutionality of

similar medical malpractice reform legislation or “cap-

ping” statutes from other states on at least three separate

occasions in recent years. Jones v. State Board of Medicine,

555 P.2d 399 (Idaho 1976), cert. denied, 431 U.S. 914 (1977);

Fein v. Permanente Medical Group, 695 P.2d 665 (Cal. 1985),

appeal dismissed, 474 U.S. 892 (1985); and English v. New

England Medical Center, Inc., 541 N.E.2d 329 (Mass. 1989),

cert. denied, 493 U.S. 1056 (1990). The “capping” statute

upon which petitioners seek review in the instant case is

a less restrictive modification of state common law than

those statutory provisions in the cases cited above where

this Court determined no substantial federal question

was presented.

In the instant case, petitioners seek review of only

one statutory section of Chapter 538, specifically

§ 538.210, which sets a cap on noneconomic damages

only,!! which cap is adjusted annually to account for

inflation.12 That statute imposes no limits whatsoever on

a plaintiff’s recovery of economic or pecuniary damages,

nor does that statute otherwise limit a plaintiff’s remedies

or theories of recovery.

However, in Jones, the Idaho Legislature enacted stat-

utes which placed limitations on both recoveries and

remedies in medical malpractice actions. Those statutes

included across-the-board caps!* on any recovery against

physicians and hospitals of $150,000 per claim and

$300,000 per occurrence. !4

The Idaho enactment also limited the grounds upon

which a medical malpractice action could be brought to

only those of common law negligence, and required that

recovery should be restricted to “compensatory dam-

ages”, and then only those compensatory damages not

11 § 538.210.1

12 § 538.210.4. This inflation adjustment feature has

resulted in the cap being increased each year since its inception

in 1986. The cap has been adjusted as follows:

1986 — $350,000

1987 — $356,000

1988 — $373,000

1989 — $391,000

1990 — $401,000

1991 — $430,000

1992 — $446,000

13 On both noneconomic and economic damages. Idaho

Code § 39-4204, 39-4205.

14 In the case of hospitals, the cap may, in certain circum-

stances, be calculated to be an amount equal to the number of

beds in the hospital, multiplied by $10,000. Idaho Code

§ 39-4205.

already satisfied from collateral sources.'* The Idaho

Supreme Court, in Jones, noted parenthetically that the

term “compensatory damages” was intended to exclude

punitive damages.'®

Clearly, the limitations imposed on medical maiprac-

tice actions by the Idaho statutes are far more onerous

than Missouri’s partial cap. Missouri’s statute does not

impose an across-the-board cap on all damages, but only

on noneconomic damages. There is no limit under

§ 538.210 to economic or pecuniary damages. Further-

more, Missouri’s statute does not alter the traditional

“collateral source” rule, nor does it prohibit punitive

damages. !7

And equally clearly, if this Court denied certiorari to

petitioners in Jones due to the absence of a substantial

federal question, there cannot be a more compelling fed-

eral question presented by the less restrictive regulation

of the Missouri statute in question here.

The California statutes in question in Fein, could also

be considered more restrictive than the Missouri regula-

tion in question here. In addition to limiting the amount

of noneconomic damages that a plaintiff can recover to a

total of $250,000,18 the California statute also modified

the “collateral source” rule to allow a defendant, at his

15 Idaho Code § 39-4210.

16 555 P.2d at 402. -

17 Section 538.210.5 expressly provides for awards of puni-

tive damages under appropriate circumstances.

18 Cal. Civ. Code § 3333.2. Note: Missouri’s cap is “per

defendant,” not per occurrence like California’s.

option, to introduce evidence of benefits received or

available to the plaintiff from various collateral sources.'?

Again, the California statutes are more restrictive

than the Missouri model. Missouri’s cap is flexible, both

in terms of annual adjustments for inflation and the

number of parties in the case, all of which inures to the

benefit of the injured patient.

In Fein, this Court initially granted certiorari and then

later dismissed plaintiff’s appeal “for want of a substan-

tial federal question.” 474 U.S. 892. If this Court found

the challenge to California’s regulation devoid of a sub-

stantial federal question, surely the Court is of like mind

regarding Missouri's.

In the most recent case where this issue has been

urged on this Court, English v. New England Medical Cen-

ter, Inc., a jury awarded an injured patient $350,000,

which was promptly reduced to $20,000 by virtue of a

Massachusetts statute2° which limited the liability of

charitable institutions to only $20,000. The Massachusetts

Supreme Court upheld that statutory limitation against

constitutional attack and this Court denied certiorari. 493

U.S. 1056 (1990). Undeniably, Massachusetts’ cap of

$20,000 is more onerous than Missouri’s partial cap.

Therefore, as recently as two years ago, this Court

determined that constitutional challenges advanced by

19 In return, plaintiffs in California are allowed, at their

option, to introduce evidence of the cost to them of securing

such payments (i.e. disability insurance premiums). Cal. Civ.

Code § 3333.1.

20 Mass. Gen. L. ch. 231, § 85K.

aggrieved plaintiffs against similar but more restrictive

“capping” legislation from other states do not present a

substantial federal question. Respondent respectfully

suggests that the grounds stated in the instant petition for

writ of certiorari are no more compelling, and should not

be treated any differently by this Court than the above-

cited requests for review.

Historically, this Court has been reluctant to involve

itself in matters which are traditionally the exclusive

province of the states. In Erie R.R. v. Tompkins, 304 U.S. 64

(1938), this Court held that federal courts must defer to

the “laws of the several states” as substantive rules of

decision in the courts of the United States. That landmark

decision was grounded in the recognition that:

There is no federal general common law. Con-

gress has no power to declare substantive rules

of common law applicable in a State whether

they be local in their nature or “general,” be

they commercial law or a part of the law of

torts. And no clause in the Constitution pur-

ports to confer such a power upon the federal

courts. . . . [T]he Constitution of the United

States, ... recognizes and preserves the auton-

omy and independence of the States — indepen-

dence in their legislative and independence in

their judicial departments.

304 U.S. at 78-79.

Because of time-honored notions of Federalism, this

Court should deny petitioners’ request for review of

§ 538.210.

III. SECTION 538.210 DOES NOT VIOLATE THE DUE

PROCESS CLAUSE OF THE FOURTEENTH

AMENDMENT

A. The Due Process Clause of the Fourteenth

Amendment Does Not Prohibit a State Legis-

lature From Modifying the Common Law.

As this Court has clearly stated in the past, the Due

Process Clause of the Fourteenth Amendment does not

restrict the right of state legislatures to amend, modify or

even eliminate the common law of their respective

states.21 This Court has on numerous occasions stated

that there is no vested property interest in any rule of the

common law?2 and that:

[t]he Constitution does not forbid the cre-

ation of new rights, or the abolition of old ones

recognized by the common law, to attain a per-

missible legislative object, despite the fact that

otherwise settled expectations may be upset

thereby.

Duke Power Co. v. Carolina Environmental Study Group, 438

U.S. 59, 88 n.32 (1978).

The proposition that the common law cannot be

amended, modified or abolished without violating the

21 “The powers not delegated to the United States by the

Constitution, nor prohibited by it to the States, are reserved to

the States respectively, or to the people.” U.S. Const. amend. X.

22 New York Central Railroad Co. v. White, 243 U.S. 188, 198

(1916); Mondou v. New York, New Haven and Hartford R.R. Co., 223

U.S. 1, 51 (1911). See also Lucas v. United States, 807 F.2d 412, 422

(5th Cir. 1986). ‘a

Due Process Clause would lead to harsh results consider-

ing that the law is not stagnant, but changes and adapts

to the times and conditions then present. West v. Loutsi-

ana, 194 U.S. 258, 262 (1903).

It bears noting that the common law of England was

adopted in Missouri by statute,?> not by constitutional

provision. It seems beyond serious argument that what a

legislature can enact by statute, it can modify or even

repeal by similar legislative enactment.

State laws resolving issues of state concern are pre-

sumed constitutional and will be enforced even if the

statute is harsh, unjust, or oppressive to some. Usery v.

Turner Elkorn Mining, 428 U.S. 1, 15 (1976); Missouri Pacific

R. Co. v. Humes, 115 U.S. 512, 523 (1885).24 And it is

23 Section 1.010 provides:

The common law of England and all statutes and acts

of parliament made prior to the fourth year of the

reign of James the First, of a general nature, which are

not local to that kingdom and not repugnant to or

inconsistent with the Constitution of the United

~States .. . are the rule of action and decision in this

state...

James I ascended to the throne of England in 1603. Surely peti-

tioners do not mean to suggest that any legislative modification

of the common law from the way it existed in 1607 gives rise to

due process considerations.

24 It is not upon this Court to determine whether any act

within the power of the state legislature is fair or unfair, good or

evil. Watson v. Buck, 313 U.S. 387, 403 (1940). This United States

Supreme Court is not a “super legislature” that questions the

state’s right to regulate business and industrial conditions

within its borders. Ferguson v. Skrupa, 372 U.S. 726, 731-32

(1963). For example, in Missouri Pacific, this Court upheld a

Missouri statute which limited a plaintiff’s damages to twice his

actual loss. 115 U.S. at 524.

well settled that tort law is a state, not federal, concern.

Pruneyard Shopping Center v. Robins, 447 U.S. 74, 79 (1980)

(Marshall, J., concurring) (cites omitted). It is, therefore,

clearly within the province of the state legislature to

prescribe limits within which a jury can exercise its dis-

cretion in awarding damages,?° despite any claim to the

contrary by petitioners that the exercise of such power is

unjust or oppressive.

Respondent admits that Missouri’s cap on non-

economic compensatory damages may, in some Cases, not

fully compensate a plaintiff for his/her noneconomic

loss. However, contrary to petitioners’ assertions, due

process is not violated just because an injured party does

not recover as much under a statute which modifies the

common law as she would have recovered under the

unaltered common law.?° Moreover, Chapter 538 does not

deny petitioners, or any plaintiff, a remedy for a wrong

done. Instead, it simply defines the substantive law by

limiting — not eliminating - the amount of noneconomic

recovery available. Missouri did not, therefore, violate

the Due Process Clause when its legislature adopted

Chapter 538.

B. Due Process Does Not Require a Quid Pro Quo

or Reasonably Just Substitute When Modifying

a Rule of Common Law.

The petitioners argue that the Due Process Clause of

the Fourteenth Amendment requires a quid pro quo or

25 Missouri Pacific, 115 U.S. at 524.

26 Duke Power, 438 U.S. at 93; New York Central R.R. Co., 243

U.S. at 201.

reasonably just substitute in order for the Missouri Gen-

eral Assembly to “displace” or “abolish” a common law

right. However, neither case cited by petitioners, Duke

Power nor New York Central, holds that a quid pro quo or

reasonably just substitute is required. Rather, in Duke

Power this Court stated:

[I]t is not at all clear that the due process clause

in fact requires that a legislatively enacted com-

pensation scheme either duplicate the recovery

at common law or provide a reasonable substi-

tute remedy.

Duke Power, 438 U.S. at 88 (emphasis added); see also New

York Central, 243 U.S. at 201.

And both Duke Power and New York Central are distin-

guishable from the instant case. Duke Power involved a

congressional enactment which abolished the right to sue

nuclear power plant operators at common law; New York

Central involved the complete abrogation of an injured

worker’s right to sue his employer for a job-related

injury.

It should be noted that §§ 538.205-538.235 do not

“abolish” any common law cause of action. Nor do they,

as in Duke Power and New York Central, “set aside one

body of rules only to establish another system in its

place.”27 Chapter 538 only modifies the common law. And

as previously noted, no person has a vested property

interest in any rule of the common law. The Missouri

General Assembly was thus within its power to limit the

27 New York Central, 243 U.S. at 201.

dollar amount of noneconomic compensatory damages

without a quid pro quo.

In fact, it is arguable a state legislature could com-

pletely abolish a common law right without a quid pro

quo.28 In Silver v. Silver, 280 U.S. 121, 122 (1929), this Court

upheid a newly enacted Connecticut “guest” statute

which abolished an individual’s right to proceed against

the driver of an automobile. Likewise, in Mobile, ] & K R

Co. v. Turnipseed, 219 U.S. 39, 40 (1910), Mississippi's

abrogation of the common law “fellow servant” doctrine,

as applied to employees of railroad corporations, was

upheld. Neither statute established a quid pro quo and yet

both were upheld.

C. Section 538.210 Is Not Arbitrary or Capricious.

Petitioners further argue that § 538.210 violates sub-

stantive due process because it is arbitrary, capricious

and irrational. The petitioners in Duke Power likewise

argued that the cap imposed by the Price-Anderson Act

was arbitrary and capricious. In rejecting this same argu-

ment there, this Court noted:

[C]andor requires acknowledgment that what-

ever ceiling figure is selected will, of necessity,

be arbitrary in the sense that any choice of a

figure based on imponderables like those at

issue here can always be so characterized. This

28 Other courts have held that a quid pro quo is not required

to abolish a common law right. See Pendergast v. Nelson, 256

N.W.2d 657, 671 (Neb. 1977) (“There is no merit to the argument

that if a common law right is to be taken away something must

be given in return.”).

is not, however, the kind of arbitrariness which

flaws otherwise constitutional action.

Duke Power, 438 U.S. at 86.

The dollar amount selected in § 538.210.1, like the

cap chosen by Congress in the Price-Anderson Act, may

therefore be characterized as “arbitrary” in the sense that

it selects any ceiling figure for damages. But under this

Court’s holding in Duke Power, that does not make the

statute unconstitutional.

Moreover, the cap does not, as petitioners allege,

defy rational explanation. it was enacted by the General

Assembly in an attempt to combat what it felt was a

developing medical malpractice crisis within the state.?9

The legislature is, and should be, the primary judge of the

necessity for an enactment such as this. See West Coast

Hotel v. Parish, 300 U.S. 379, 398 (1936); see also Watson v.

Buck, 313 U.S. 387, 403 (1940) (deference given to state

legislature).

Finally, the notion that due process authorizes courts

to strike down laws they believe were enacted unwisely

has long ago been discarded by this Court:

[The] doctrine . . . that due process authorizes

Courts to hold laws unconstitutional when they

believe the legislature has acted unwisely

.. . has long been discarded. . . . Legislative

bodies have broad scope to experiment with

economic problems, and this Court does not sit

29 Adams v. Children’s Mercy Hospital, 832 S.W.2d 898, 904

(Mo. 1992).

to “subject these states to an intolerable supervi-

sion hostile to the basic principles of our gov-

ernment and wholly beyond the protection

which the general clause of the 14th Amend-

ment was intended to secure.”

Ferguson v. Skrupa, 372 U.S. 726, 730 (1963) (quoting Sproles

v. Binford, 286 U.S. 374, 388 (1932)).

IV. SECTION 538.210.1 DOES NOT VIOLATE THE

EQUAL PROTECTION CLAUSE OF THE FOUR-

TEENTH AMENDMENT

A. A Statute That Applies a Cap to Noneconomic

Damages Applicable Only in Medical Mal-

practice Lawsuits Does Not Impact a Suspect

Class or Impair a Fundamental Right.

The first step in addressing any equal protection

analysis is to determine whether the challenged classi-

fication operates to the disadvantage of a suspect class or

impinges upon a fundamental right protected by the Con-

stitution, thereby requiring strict judicial scrutiny. If the

classification does not burden a suspect class or impinge

upon a fundamental right, the siatute will withstand

constitutional challenge so long as the classification bears

a rational relationship to a legitimate state purpose. Weber

v. Aetna Casualty & Surety Co., 406 U.S. 164, 172-173

(1972).

This Court has identified “suspect” classifications as

those based on alienage, ancestry and race. Massachusetts

Board of Retirement v. Murgia, 427 U.S. 307, 313 (1976). On

defining a “suspect” class, this Court said:

A suspect class is “one saddled with such dis-

abilities, or subject to such a history of purpose-

ful unequal treatment, or relegated to such a

position of political powerlessness as to com-

mand extraordinary protection from the major-

itarian political process.”

Id. at 313 (quoting San Antonio School District v. Rodriquez,

411 U.S. 1, 28 (1973)). Clearly, plaintiffs in medical negli-

gence lawsuits do not fit this description.

“Fundamental” rights include the right to vote, to

travel interstate, to personal privacy and to free speech,

as well as other First Amendment protections. Massa-

chusetts Board, 427 U.S. at 312 nn. 3-4.

The constitutional guarantee of equal protection is

intended to protect against “invidious discrimination.”

When neither a fundamental right is infringed nor a

suspect class impacted, the equal protection safeguard is

only offended when a classification “rests on grounds

wholly irrelevant to the achievement of the state’s objec-

tive.” McGowan v. Maryland, 366 U.S. 420, 425 (1961).

Indeed, the state is not required to prove the correctness

nor, ultimately, the wisdom of a legislative decision. The

state legislature is presumed to have acted within consti-

tutional confines even if, “in practice, their laws result in

some inequality.” McGowan, 366 U.S. at 425.

The issue which this Court would have to decide - if

it were to grant certiorari in this case — is not whether a

cap that distinguishes between medical malpractice torts

and other torts will in fact ensure the availability of

affordable health care in Missouri, but whether in 1986

there was reason for the legislature to believe it would.

Equal protection is satisfied if the Missouri General

Assembly could have reasonably anticipated that the cap

provision would reduce costs and promote the availabil-

ity of health care services.3° The reasonableness of the

legislature’s purpose in enacting §§ 538.205-538.235

remains at least debatable. Therefore, the equal protection

issue must be resolved in the legislature’s favor. United

States v. Carolene Products Co., 304 U.S. 144, 154 (1938).

B. The Cap Is Rationally Related to a Legitimate

Governmental Objective.

Several jurisdictions have upheld the constitu-

tionality of medical malpractice legislation in the face of

equal protection attacks. Fein v. Permanente Medical Group,

695 P.2d 665 (Cal. 1985) (noneconomic medical malprac-

tice cap was rationally related to the objective of reducing

the cost to malpractice defendants and their insurers, and

therefore did not violate due process or equal protection);

Lucas v. United States, 807 F.2d 414 (5th Cir. 1986) (non-

economic cap was rationally related to the perceived

crisis in the malpractice industry and therefore did not

violate due process or equal protection); Davis v. Omit-

owoju, 883 F.2d 1155 (3rd Cir. 1989) (statutory non-

economic cap was rationally related to a legislative desire

to curb high cost of malpractice insurance and thereby

30 In an amicus curiae brief filed in the Missouri Supreme

Court when petitioners’ appeal was being considered there, the

Missouri Medical Association cited rather compelling data

regarding the actual effect the 1986 enactment had had on pro-

fessional liability insurance premiums in Missouri, which

strongly suggested that the “reform” legislation was in fact

having the desired effect of decreasing professional liability

insurance premiums for health care providers. See Appendix B.

promote quality medical care, therefore due process and

equal protection were not violated); and Boyd v. Bulala,

877 F.2d 1191 (4th Cir. 1989) (statutory cap on total medi-

cal malpractice recovery was reasonably related to a valid

legislative purpose of maintenance of adequate health

care services and therefore did not violate due process or

equal protection guarantees).3!

This Court has found that a statutory limitation on

tort recoveries is “a classic example of an economic regu-

lation — a legislative effort to structure and accommodate

‘the burdens and benefits of economic life’.” Duke Power

Co. v. Carolina Environmental Study Group, 438 U.S. 59, 83

(1978).

As this Court has noted:

States are not required to convince the courts of

the correctness of their legislative judgments.

Rather, those challenging the legislative judg-

ment must convince the court the legislative

facts upon which the classification is apparently

based could rot reasonably be conceived to be true

by the governmental decisionmakers.

Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464

(1979) (emphasis added).

In order to justify this Court’s issuance of a writ

pursuant to 28 U.S.C. § 1257(a), petitioners must demon-

strate that the Missouri General Assembly acted in an

arbitrary and irrational way in enacting the statute in

31 See also Etheridge v. Medical Center Hospitals, 376 S.E.2d

525 (Va. 1989) (total cap on medical malpractice recovery did not

violate procedural due process, substantive due process, equal

protection or the right to trial by jury).

question. But Missouri’s cap is rationally related to the

legislature’s goal of promoting the availability and

affordability of health care services by limiting the high

cost of malpractice insurance — and thus, ultimately, the

cost of health care to Missouri’s citizens as well.

Petitioners cite cases*? that found no reasonable rela-

tionship existed between a statutory cap on damages on

the one hand, and the state’s interest in reducing mal-

practice insurance costs and increasing the availability of

health care on the other, in an effort to persuade this

Court to review Missouri’s statute. However, the peti-

tioners’ cases have either been subsequently overruled,

involve statutes that are too dissimilar to be of use in

addressing the constitutionality of Missouri’s statute or

were decided based upon a provision of a state, not the

federal, constitution.*9

C. Heightened Scrutiny Is Inapplicable, Neverthe-

less the Cap Provision Survives Its Application.

Petitioners urge this Court to apply “heightened

scrutiny” in its analysis of their equal protection claim,

32 See Waggoner v. Gibson, 647 F. Supp. 1102, 1106 (N.D. Tex.

1988); Baptist Hospital of Southwest Texas, Inc. v. Baber, 672 S.W.2d

296, 298 (Tex. App. 1984); Wright v. Central DuPage Hospital

Association, 347 N.E.2d 736, 741-42 (Ill. 1976).

33 Waggoner was subsequently overruled by the Fifth Cir-

cuit in Lucas v. United States, 807 F.2d 414, 422 (5th Cir. 1986),

thus deflating that decision and the Texas state court decision,

Baptist Hospital, which invalidated the Texas cap on federal

equal protection grounds. Wright concerned a total cap. 347

N.E.2d at 741. In addition, the Wright decision was based on a

provision of the Illinois Constitution, not on federal equal pro-

tection analysis. Id. at 743.

even though this Court has repeatedly held that the

“rational basis” test governs equal protection analysis if

neither a fundamental right nor a suspect classification is

involved. Weber v. Aetna Casualty & Surety Co., 406 U.S.

164, 173 (1972).

This Court’s guidance in determining “quasi-funda-

mental rights” or “semi-suspect” classes shows that the

right to recover for personal injuries is not a right so

significant as to warrant heightened scrutiny. This Court

has only applied heightened scrutiny in cases of ille-

gitimacy,*4 gender,35 and alienage.*© In Duke Power Co.,

this Court used the “rational basis” test to uphold a

federal law capping damages in the event of a nuclear

accident. 438 U.S. at 93. Respondent respectfully suggests

that application of “heightened scrutiny” to the statute in

question would not be warranted.

However, even if this Court were to decide to estab-

lish a third category of equal protection analysis, Mis-

souri’s cap clearly bears a reasonable and substantial

relationship to the legislative objective of controlling

costs and maintaining the integrity of Missouri’s health

care system. Therefore it passes “heightened scrutiny”

review.

34 Clark v. Jeter, 486 U.S. 456 (1988).

35 Craig v. Boren, 429 U.S. 190 (1976).

36 Plyler v. Doe, 457 U.S. 202 (1982).

eee

D. There Is No Split of Authority Among the Fed-

eral Courts Regarding the Validity of Statutory

Caps on Noneconomic Damages in Medical

Malpractice Cases.

Petitioners claim there is a “clear and substantial”

split of authority among the federal and state courts as to

the constitutionality of statutory caps” based on federal

equal protection grounds. This is simply not the case.

Petitioners could not find even one federal case to sup-

port their claim.

All of the federal courts which have considered the

constitutionality of reform acts have upheld such acts as

constitutional.38 Similarly, numerous state courts have

ruled that these caps are valid under federal equal protec-

tion analysis.39 Petitioners, nevertheless, cite several state

court cases invalidating statutory caps on equal protec-

tion grounds as “proof” that there is a “clear and substan-

tial split of authority.” However, these cases and statutes

are either distinguishable from the present case, have

37 Petition for Writ, page 5.

38 See Boyd v. Bulala, 877 F.2d 1191, 1197 (4th Cir. 1989);

Davis v. Omitowoju, 833 F.2d 1155, 1158-59 (3rd Cir. 1989); Lucas

v. United States, 807 F.2d 414, 422 (5th Cir. 1986); and Hoffman v.

| United States, 767 F.2d 1431, 1437 (9th Cir. 1985).

39 Etheridge v. Medical Center Hospitals, 376 S.E.2d 525,

533-34 (Va. 1989); Fein v. Permanente Medical Group, 695 P.2d 665,

682-83 (Cal. 1985), appeal dismissed, 474 U.S. 892 (1985); Sibley v.

Board of Supervisors of Louisiana State University, 462 So.2d 149,

158 (La. 1985), opinion modified, 477 So.2d 1094, 1109-10 (La.

1985); Johnson v. St. Vincent Hospital, Inc., 404 N.E.2d 585,

598-600 (Ind. 1980); Pendergast v. Neison, 256 N.W.2d 657, 668

(Neb. 1977).

been erroneously interpreted by petitioners or have been

subsequently overruled.*

There is not a split among the federal courts regard-

ing the constitutionality of a statute that applies a cap on

noneconomic damages applicable only to medical mal-

practice cases. Petitioners attempt to manufacture a split

40 Petitioners’ supporting case law is inapplicable and too

dissimilar to be of use in addressing the constitutionality of

Missouri’s cap. Many of the cases petitioners cite address total

caps. See Arneson v. Olson, 270 N.W.2d 125 (N.D. 1978); McGuire

v. C&L Restaurant, Inc., 346 N.W.2d 605, 609, 613 n.10 (Minn.

1984).

Petitioners cite Jones v. State Board of Medicine, 55. «.2d 399

(Idaho 1976), cert. denied, 431 U.S. 914 (1977). This is erroneous.

The Idaho Supreme Court upheld the statutory caps against

constitutional attack.

Petitioners also claim Pfost v. Montana, 713 P.2d 495 (Mont.

1985) supports the use of strict scrutiny because the right to full

legal redress is fundamental. Pfost also dealt with a total cap.

Furthermore, Pfost was overruled by the Montana Supreme

Court in 1989 and is no longer good law or valid precedent.

Romero v. J&] Tire, JMH, Inc., 777 P.2d 292, 294 (Mont. 1989)

(citing Meech v. Hilhaven West, Inc., 776 P.2d 488, 491 (Mont.

1989)).

In Meech, the plaintiff claimed to be denied his fundamental

right to full legal redress on equal protection grounds. The

defendant answered that the Montana Constitution guaranteed

only a right of access to courts “to seek a remedy for wrongs

recognized by common law or statutory authority, and the legislature

may alter common law causes of action to promote a legitimate state

interest.” Id. at 491 (emphasis added). The Montana Supreme

Court expressly adopted the defendant’s interpretation and

overruled Pfost insofar as it held that the Montana Constitution

guaranteed “a fundamental right to full legal redress.” Conse-

quently the Pfost court’s application of strict scrutiny is no

longer valid since Meech holds that there is no fundamental

right to full legal redress. Montana therefore supports respon-

dent’s position, not petitioners’.

by citing state court cases invalidating caps. However,

petitioners’ supporting case law is inapplicable to Mis-

souri’s cap. Those cases have either been overruled,

involve statutes too dissimilar to be of use in addressing

the constitutionality of Missouri’s statute or were based

on some provision of another state’s constitution. Peti-

tioners have completely failed to demonstrate any genu-

ine split of authority on this issue.

CONCLUSION

Because the provisions of § 538.210.1 are not repug-

nant to either the Due Process or Equal Protection clauses

of the Fourteenth Amendment, this Court’s jurisdiction is

not properly invoked pursuant to 28 U.S.C. § 1257(a).

And because no substantial federal question is presented

by the petition for writ of certiorari, it should be denied.

Respectfully submitted,

FLtoyp R. Fincu, Jr.*

TimotHy M. AyLwaARD

Sa.LLy L. THIEMAN

BLACKWELL, SANDERS, MATHENY,

Weary & LomBARDI

Two Pershing Square, Suite 1100

2300 Main Street

P.O. Box 419777

Kansas City, Missouri 64141-6777

(816) 274-6800

FAX: (816) 274-6915

Attorneys for Respondent

The Children’s Mercy Hospital

*Counsel of Record

‘ = : 7 a a ae eee id

APPENDIX A

IN THE CIRCUIT COURT OF

JACKSON COUNTY, MISSOURI

AT KANSAS CITY

NICOLE ADAMS, A Minor Child,

By and Through Her Legal

Guardian and Next Friend, JULIA

ALICE ADAMS, and JULIA ALICE

ADAMS, Individually,

Plaintiffs,

CASE NO.:

CV89-23626

THE CHILDREN’S MERCY

HOSPITAL, et al,

Defendants.

CIVIL

)

) DIVISION: 6

)

) DOCKET: “M”

)

PLAINTIFFS’ MOTION TO BAR THE ENFORCEMENT

OF ANY AND ALL PROVISIONS OF V.A.M.S., CHAP-

TER 538 (TORT ACTIONS BASED ON IMPROPER

HEALTH CARE) AS UNCONSTITUTIONAL UNDER

THE UNITED STATES AND MISSOURI CONSTITU-

TIONS

COME NOW Plaintiffs, by and through their counsel

of record, and move this Court for its Order barring the

enforcement of Chapter 538 V.A.M.S. (Tort Actions Based

on Improper Health Care) for the reasons set forth herein

and in the attached Suggestions in Support expressly

incorporated herein by reference:

1. This medical malpractice action is potentially

affected by the Medical Malpractice Act passed by the

Missouri legislature intending to apply to all causes of

action accruing on or after February 3, 1986 (Chapter 538,

V.A.M.S., attached hereto as “Exhibit A”).

2.Chapter 538 is unconstitutional under the Missouri

and United States Constitutions as denying Plaintiffs

herein equal protection under the laws, due process of

law, fair and open access to the courts, certain remedy

afforded for every injury to person, right of trial by jury,

and the constitutional right to one’s health and happi-

ness, all as set forth in the attached Suggestions in Sup-

port expressly incorporated herein by reference.

3. Using precisely the same analysis as exercised by

the Missouri Supreme Court in striking down as uncon-

stitutional the last two (2) attempts by the Missouri legis-

lature to impair the rights of medical malpractice victims,

this current medical malpractice legislation should be

rendered null and void forthwith as unconstitutionally

violative of Plaintiffs’ guaranteed rights herein.

WHEREFORE, for the above-stated reasons, Plaintiffs

Nicole and Julia Alice Adams respectfully request that

this Court enter its Order in this matter as follows:

(a) That Chapter 538, Missouri Revised Stat-

utes (Tort Actions Based on Improper

Health Care) is directly violative of the

Missouri and Federal Constitutional provi-

sions set forth herein and shall be rendered

null and void and of no effect in the trial of

this action or beyond; and

(b) For such other and further relief as this

Court deems just and proper.

Respectfully submitted,

ROBB & ROBB

s/ Anita Porte Robb

GARY C. ROBB #29618

ANITA PORTE ROBB #30318

Mark Twain Tower, Suite 1500

106 West 11th Street

Kansas City, Missouri 64105

Telephone: (816) 474-8080

Facsimile: (816) 474-8081

ATTORNEYS FOR

PLAINTIFFS JULIA ALICE

ADAMS AND NICOLE

ADAMS

CERTIFICATE OF MAILING

| hereby certify that a

copy of the foregoing was

mailed, postage-paid, on

this 4th day of February,

1991, to:

Timothy M. Aylward, Esq.

BLACKWELL, SANDERS, MATHENY,

WEARY AND LOMBARDI

Two Pershing Square, Suite 1100

2300 Main Street

P.O. Box 41977

Kansas City, Missouri 64141-6777

ATTORNEYS FOR DEFENDANTS

THE CHILDREN’S MERCY HOSPITAL

SUSAN ROUSHAR, R.N. AND

CINDY DOOLEY, R.N.

Reid F. Holbrook, Esq.

Janet Simpson, Esq.

HOLBROOK & HEAVEN, P.A.

757 Armstrong

P.O. Box 171927

Kansas City, Kansas 66117

ATTORNEYS FOR DEFENDANT

JANE JELINEK, M.D.

/s/ Anita Porte Robb

ATTORNEY FOR PLAINTIFFS

[Petitioners’ Exhibit A Omitted in Printing]

IN THE CIRCUIT COURT OF

JACKSON COUNTY, MISSOURI

AT KANSAS CITY

NICOLE ADAMS, A Minor Child,

By and Through Her Legal

Guardian and Next Friend, JULIA

ALICE ADAMS, and JULIA ALICE CASE NO.:

ADAMS, Individually, CV89-23626

Plaintiffs,

CIVIL

HE CHI : Cc

T HILDREN’S MERCY DOCKET: “M”

HOSPITAL, et al,

)

) DIVISION: 6

)

Defendants. )

)

SUGGESTIONS IN SUPPORT OF PLAINTIFFS’

MOTION TO BAR THE ENFORCEMENT OF ANY

AND ALL PROVISIONS OF V.A.M.S, CHAPTER 538

(TORT ACTIONS BASED ON IMPROPER HEALTH

CARE) AS UNCONSTITUTIONAL UNDER THE

UNITED STATES AND MISSOURI CONSTITUTIONS

COME NOW Plaintiffs, by and through their counsel

of record, and for their Suggestions in Support of their

Motion to Bar the Enforcement of Chapter 538, V.A.M.S.

(Tort Actions Based on Improper Health Care) state and

allege as follows:

I. FACTUAL BACKGROUND AND PROCEDURAL

CONTEXT OF MOTION

This medical malpractice cause of action comes to

trial before this Court on February 11, 1991. In that this

cause of action arose on March 30, 1988, it is arguably and

potentially affected by a medical malpractice statute

passed by the Missouri legislature which, on its face, is

intended to apply to ali such causes of action accruing on

or after February 3, 1986.

Plaintiffs hereby admit and stipulate that their tort

action is based on improper health care, but dispute the

applicability of Chapter 538 and each of its provisions set

forth therein as violating their United States and Missouri

constitutional rights to due process of law, open courts,

right of trial by jury, and equal rights and opportunities

under the law. For the.reasons set forth herein, Plaintiffs

respectfully request that this Court firmly and unequivo-

cally strike down chapter 538 and render it null and void

in any application to the instant case in view of its clear

violation of the various constitutional guarantees set

forth and applicable herein.

Il. AUTHORITY AND ANALYSIS

A number of other states have stricken down similar

medical malpractice legislation as violative of their own

state constitutional guarantees. Montana — Pfost v. Mon-

tana, 713 P.2d 945 (Mont. 1985); Ohio —- Duran v. Subur-

ban Community Hospital, 482 N.E.2d 1358 (Ohio C.P.

1985); Washington — Sofie v. Fiberboard Corp., 771 P.2d

711 (Wash. 1989); Texas - Lucas v. United States, 757

S.W.2d 687 (Tex. 1988); Virginia - Boyd v. Bulala, 647

F.Supp. 781 (W.D.Va. 1986); Florida - Smith v. Depart-

ment of Insurance, 507 So.2d 1080 (Fla. 1987). Our sister

state of Kansas struck down in its entirety the Kansas

medical malpractice act as unconstitutional in Kansas

Malpractice Victim’s Coalition v. Bell, 757 P.2d 251 (Kan.

1988). All of these states have similar constitutional pro-

visions to that found in the Missouri Constitution of 1945,

Bill of Rights.

A. This Court Has the Power, Authority, and Duty

to Strike Down Chapter 538 as Unconstitutional

It is the duty and responsibility of this Court to strike

down and to block the application of any legislative act

or statute which is in conflict with the provisions of the

Federal or United States Constitution. In 1822, the

Supreme Court of Missouri held in Baily v. Gentry, 1 Mo.

164, that it was the duty of the court to inquire into the

constitutionality of an act of the legislature.

If a statute conflicts with a constitutional provision,

that statute “stands for naught” and is void as fully as if

it had been specifically repealed. Pogue v. Swink, 261

S.W.2d 40 (Mo. 1953); State ex rel. Goldman v. Hiller, 278

S.W. 708 (Mo. 1926). Indeed, the Missouri Supreme Court

has placed that duty upon all of the courts of the state of

Missouri to first and foremost enforce the Constitution

and the court held that the courts of the state should

“brush aside any statute which conflicts with (the Consti-

tution), whether it was passed before or after the Consti-

tution was adopted.” Kansas City, Fort S & M.R. Co. v.

Thornton, 54 S.W. 445 (Mo. 1899).

The Missouri legislature’s last attempt to establish a

Chapter 538 affording special rights and privileges to

health care providers was stricken down by the Supreme

Court of Missouri, en banc, in State ex rel. Cardinal

Glennon Memorial Hospital for Children v. Gaertner, 583

S.W.2d 107, 110-11 (Mo.banc 1979). The Court held that

the Chapter 538 requirement that malpractice plaintiffs

must refer their claim to a professional liability review

board before filing their action in court was unconstitu-

tional as depriving plaintiffs a fair right of access to the

courts. The Court found that it violated the “open courts”

provision of the Missouri Constitution of 1945. Id. at 110.

It is most noteworthy for present purposes that it was

the trial court which initially struck Chapter 538 as

unconstitutional in State ex rel. Cardinal Glennon Memo-

rial Hospital for Children v. Gaertner, supra. The Honor-

able Carl R. Gaertner, Judge, Circuit Court of the City of

St. Louis, held that Chapter 538 was unconstitutional and

overruled the defendant’s motion to dismiss on the basis

of the plaintiff’s failure to comply with the review board °

requirement.

Under the circumstances of the present action, it

remains the duty of the trial court in the first instance to

zealously guard the constitutional rights of Missouri citi-

zens.

B. Plaintiffs Assert Standing to Challenge Consti-

tutionality of Chapter 538 In View of the Sub-

stantial, Impending and Immediate Invasion of

Their Personal Constitutional Rights Which

Would Have the Effect of Injuring Them

Plaintiffs herein assert standing to challenge Chapter

538 as unconstitutional in view of the impending injury

by its application to them during the trial of their medical

negligence case beginning February 11, 1991. Plaintiffs

have only one (1) opportunity as a matter of law to

a aa aa

present their case to a jury. As set forth herein, the

application of the provisions of Chapter 538 at trial and

afterwards would cause severe and irreparable harm to

Plaintiffs herein. That harm is real, impending, and sub-

stantive, and not illusory, permitting Plaintiffs herein

standing to assert that the legislative act at issue is

unconstitutional and should be stricken. Stouffer v.

Crawford, 248 S.W. 581 (Mo. 1923); State ex rel. Atlantic

Horse Insurance Co. v. Blake, 144 S.W. 1094 (Mo. 1912),

ovrld. on other grnds; Missouri Pacific R. Co. v.

Kirkpatrick, 652 S.W.2d 128 (Mo. 1983).

C. Chapter 538, In Its Entirety, Should Be Stricken,

or In the Alternative, the Specific Provisions

Set Forth Below Should Be Stricken as Viola-

tive of the United States and Missouri Consti-

tutions

The medical malpractice statute, Chapter 538, has

several provisions which substantially increase the bur-

den of a medical malpractice plaintiff, interfere with their

ability to obtain and collect a judgment, and limit the

amount of damages obtainable, all of which conflict

directly with provisions of the United States and Missouri

Constitutions.

1. Chapter 538 Purports to Permit a Medical Mal-

practice Defendant to Apportion Fault to Non-Parties

Pursuant to Section 538.230 — This particular provision of

the statute presumably would permit a defendant to

apportion fault to persons who are not at the time of trial

parties to the litigation. V.A.M.S. 538.230.1. Any other tort

10a

victim, other than those injured by health care providers,

need not concern him or herself with defending the

actions of persons who are not parties at trial. This arbi-

Sections 2, 10, 14, and 22(a) of the Missouri Constitution

and-Bill of Rights of the United States Constitution guar-

anteeing right to trial by jury, equal protection and due

process.

2. Modification of Joint and Several Liability —

Section 538.230.2 would permit a medical malpractice

defendant to escape the rules of joint and several liability

applicable in favor of all injured persons, other than those

hurt by doctors or hospitals. This section indicates that a

malpractice defendant would only be jointly liable with

defendants whose apportioned percentage of fault is

equal to or less than such defendant. See A. Robb, Mis-

souri’s Medical Malpractice Legislation: Handbook, Forms and

Jury Instructions (UMKC/CLE 1986 and 1990 Supp.), p.

21-22.

That being the case, a malpractice plaintiff is faced

with the real threat of suffering a substantial, uncollected

portion of a verdict due to the application of this provi-

sion which is directly in violation of Sections 2, 10, 14,

and 22(a), of the Missouri Constitution and Bill of Rights

of the United States constitution guaranteeing right to

trial by jury, equal protection and due process.

3. Itemization of Damages - Section 538.215 would

require that in a lawsuit against a doctor or hospital that

the jury must itemize damages as between five (5) dis-

tinct categories. Again, any other tort victim need not

lla

have the categories of damages itemized and that provi-

sion creates additional burdens of persuasion and proof

not to be hazarded by other tort victims. The application

of this provision is directly in violation of Sections 2, 10,

14, and 22(a) of the Missouri Constitution and Bill of

Rights of the United States Constitution guaranteeing

right to trial by jury, equal protection and due process.

4. Requirement That Future Damages May Be Pay-

able in Periodic or Installment Payments — Section

538.220 would require that any future damages be paid in

whole or in part in periodic or installment payments

should the sum exceed One Hundred Thousand Dollars

($100,000.00). Such provision is onerous and unfair to a

malpractice victim and is not to be found applicable to a

person injured in any other way. The application of this

provision is directly in violation of Sections 2, 10, 14, and

22(a) of the Missouri Constitution and Bill of Rights of

the United States Constitution guaranteeing right to trial

by jury, equal protection and due process.

5. Limitation on “Non-Economic Damages” — Sec-

tion 538.210 purports to limit non-economic damages to a

particular dollar figure as set forth each January 1st. That

particular dollar figure purportedly applicable at the pre-

sent time is $430,000.00 per separately insured defendant.

This most noxious and unconstitutional provision

harms those the most who are in most need of the award

and who are hurt the worst. This provision of Chapter

538 cannot withstand judicial scrutiny, and should be

stricken forthwith. Plaintiffs herein should not be

12a

unfairly deterred or threatened by the potential appli-

cability of this damage limitation provision. The applica-

tion of this provision is directly in violation of Sections 2,

10, 14, and 22(a) of the Missouri Constitution and Bill or

[sic] Rights of the United States constitution guaranteeing

right to trial by jury, equal protection and due process.

6. Chapter 538 In Its Entirety — The above provi-

sions and the remaining provisions of Chapter 538, in its

entirety, work to undermine the rights of medical negli-

gence plaintiffs as contrasted directly to those rights of

other injured persons. Chapter 538 as a whole is uncon-

stitutional and directly violative of the particular consti-

tutional provisions as set forth herein. It should be

stricken in its entirety and rendered null and void as

applicable to the cause of action herein

D. Chapter 538 and the Specific Provisions

Therein, Are Directly Violative of the Missouri —

Constitution, Article 1, Bill of Rights, Sections

2, 10, 14, and 22(a)

1. Plaintiffs’ Constitutional Rights To Equal

Opportunities Under the Law are Violated by Chapter

538 and its Provisions Therein — Section 2 of Article 1 of

the Missouri Constitution, which is the Bill of Rights,

provides as follows:

“That all constitutional government is intended

to promote the general welfare of the people;

that all persons have a natural right to life,

liberty, the pursuit of happiness and the enjoy-

ment of the gains of their own industry; that all

persons are created equal and are entitled to equal

rights and opportunities under the law; that to give

. dé Z et j

: 13a

security to these things is the principal office of

government, and that when government does

not confer this security, it fails in its chief

design.”

(Missouri Constitution: of. 1945, Article 1, Section 1) ,

(Emphasis added). The specific provisions of Chapter 538

set forth above and incorporated in this, section by speci-

fic reference thereto violate Plaintiffs’ constitutional

‘rights.

‘Chapter 538 creates a “suspect class” of persons

injured by the acts of health care providers and imposes

*.. upon them burdens and conditions affecting their funda-

mental rights which are not imposed upon other mem-

bers of the larger class of injured persons in general. In

that.a “suspect class” exists, strict judicial scrutiny of the

offending statute is required by the Missouri Constitu-

tion. State Board of Registration for the Healing Arts v.

Giffen, 651 S.W.2d 475, 479 (Mo. 1983); State v. Bolder,

635 S.W.2d 673, 682: (Mo.banc. 1982), cert. denied, 459

U.S. 1137 (1983).

Persons injured by a drunk driver, a toppling build-

~ ing, or in an airplane crash have the rights and privileges

of the common law unfettered by Chapter 538 and similar

provisions therein. For example; in a motor vehicle acci-

dent, a defendant may not point to the actions of a

released party and claim that certain fault should be

attributable to that released party with the effect of

reducing his or her own apportionment of fault. Merely

permitting the evidence of allegedly negligent.acts of

non-parties creates an unnecessary burden and impedi-

ment to the malpractice victim’s case.

l4a

Chapter 538 and its provisions should be stricken

down as directly violative and in conflict with Section 2

of Article 1, Bill of Rights of the Missouri Constitution.

2. Chapter 538 and its Individual Provisions Vio-

late Due Process of Law - Section 10 of the Missouri

Constitution, Article 1, Bill of Rights, provides that:

“That no person shall be deprived of life, liberty

or property without due process of law.”

(Missouri Constitution of 1945, Article 1, Bill of Rights,

Section 10) (Emphasis added). By enacting Chapter 538

and seeking to apply it to persons injured by the actions

of health care providers, the legislature is denying to

Plaintiffs herein and other similarly injured persons the

_—_due process of law guaranteed by the Constitution.

Due process of law is not some amorphous concept

devoid of substance or meaning. The Missouri Supreme

Court has expressly stated that the term “due process of

law” is synonymous with the “law of the land.” State v.

Jones, 268 S.W. 83 (Mo. 1925); Wilcox v. Phillips, 169

S.W. 55 (Mo. 1914). In particular, “due process of law”

means that the individual safeguards applicable for the

protection of the individual rights for one class of per-

sons will govern precisely those rights and duties for

persons which belong to that same class. Ivie v. Bailey, 5

S.W.2d 50 (Mo. 1928). Due process requires that the law

applies equally to all within a particular class and failing

that, there is a violation of a citizen’s fundamental consti-

tutional rights. State ex rel. Sweezer v. Green, 232 S.W.2d

897 (Mo. 1950), ovrld. on other grnds; State ex rel. North

v. Kirtley, 327 S.W.2d 166 (Mo. 1959).

15a

The specific provisions of Chapter 538 set forth

above, and the legislation in its entirety, deprive Plaintiffs

herein of the due process of law. As such, Chapter 538

should be stricken down and held null and void.

3. Chapter 538 and its Specific Provisions Therein,

Violate the “Open Courts” Provision of the Missouri

Constitution — Section 14 of the Missouri Constitution,

Article 1, Bill of Rights, provides that:

“That the Courts of Justice shall be open to every

person, and certain remedy afforded for every injury

to person, property. or character, and that right

and justice shall be administered without sale,

denial, or delay.”

(Missouri Constitution of 1945, Article 1, Section 14, Bill

of Rights) (Emphasis added). To the extent that Chapter

538 and its specific provisions set forth herein hinders

Plaintiffs in their proof, obtaining a verdict and judg-

ment, and beyond, it closes the courts to them in a very

real sense.

Indeed, it was upon this provision that the Missouri

Supreme Court relied in holding the original Chapter 538,

requiring a Professional Liability Review Board, void as

unconstitutional. State ex rel. Cardinal Glennon Memo-

rial Hospital for Children v. Gaertner, 538 S.W.2d 107,

110-11 (Mo.banc 1979). If the process of requiring a pre-

trial procedure is held to interfere with a Missouri citi-

zen’s access to the courts, then certainly an arbitrary and

burdensome trial process itself would be even more con-

stitutionally offensive.

aaa a a aaa ts

l6a

The remedy to be provided to Plaintiffs herein may

be substantially affected by the arbitrary and unwar-

ranted provision limiting recovery on non-economic

damages. Simply requiring the categorization of damages

in order to establish which damages are “non-economic”

in nature burdens Plaintiffs in setting forth their proof on

damages. In view of the unconstitutionality of the “dam-

ages caps” provision, this court should not require cate-

gorization of the damages as set forth by Chapter 538.215

and should similarly hold null and for naught the

remaining provisions of Chapter 538 in its entirety.

The “open courts” provision of the Missouri Consti-

tution was specifically int@énded to protect citizens in

enfogcing rights recognized by law. Horner v. David Dis-

tributing Company, 599 S.W.2d 100, 102 (Mo.App. 1980).

Missouri common law sets forth the rights of recovery,

joint and several liability, and the rules affecting the

obtaining of judgments and damages as applicable to all

tort victims. Chapter 538 does not protect Plaintiffs herein

in enforcing these rights as recognized by law and must

fail.

In a recent decision balancing the rights of a medical

malpractice claimant as against the State’s interest in

remedying a “perceived medical malpractice crisis,” the

Supreme Court of Missouri came down firmly on the side

of the medical malpractice plaintiff. In Strahler v. St.

Luke’s Hospital, 706 S.W.2d 7 (Mo.banc 1986), the Court

struck down as unconstitutional the legislative attempt to

bar a medical malpractice claimant's claim for failure to

file within the statutory two-year period of limitation. Id.

at 8-9.

17a

The Court began its constitutional analysis by

emphasizing that the Missouri and Federal Constitutions

are not synonymous. According to the Court:

... our State constitution is also a reservoir of

personal rights and liberties - some of which are

not enumerated in or accorded ‘protection by

our Federal Constitution. Article I, Section 14 is

one such provision in our State Constitution

which grants to the people of Missouri an

express constitutional guarantee not enumer-

ated in our Federal Constitution.”

Id, at 9 (Emphasis added). The Court proceeded to review

the decision of State ex rel. Cardinal Glennon Memorial

Hospital for Children v. Gaertner, supra, concluding that

that decision “was intended to give constitutional protec-

tion to a litigant’s ability to gain access to Missouri's

courts.” Id.

In reviewing the constitutional history of the “open

courts” provision, the Court concluded that:

“The language contained in Mo.Const.Art. I,

Sec. 14, is not simply advisory in nature: it gives

express constitutional protection to a litigant’s

right of access to our court system.”

Id. The Missouri Supreme Court then went about the task

of weighing the legislature’s purpose in enacting the

statute as balanced against the effect on the malpractice

claimant’s constitutional rights. The Court pointed out

that:

“State legislatures reacted in the 1970’s to a per-

ceived crisis in medical malpractice insurance

by enacting these types of limitations provi-

sions. While some provisions no doubt go some

18a

distance in alleviating the problem of malprac-

tice insurance and health care providers, they do

so only at a high cost.”

Id. at 10 (citing to 5 Journal of Legal Medicine, 469 [1984})

(Emphasis added). While the Court “fully appreciate[d]”

the purpose of the legislature in enacting this statute, the

Court expressly found that:

“ _.. the method employed by the legislature to

battle any escalating economic and social costs

connected with medical malpractice litigation

exacts far too high a price . 5

Id. at 11. In no uncertain terms, the Court held that the

statute “runs afoul of our State Constitution and we

accordingly hold it constitutionally infirm.” Id.

Precisely the same constitutional balancing and anal-

ysis is applicable to the legislation challenged in the case

at bar. Although a few of the challenged provisions have

in their pre-trial effect only a “chilling” propensity, such

as the requirement to reduce future damages to present

value, other provisions directly and immediately impact

upon the trial of the case.

For example, permitting into evidence any testimony

as to the fault of a non-party or released party would

serve to undermine and diminish Plaintiffs’ full and fair

* access to the courts and denies that “certain remedy

afforded for every injury to person,” which is Plaintiffs’

constitutional guarantee under Article 1, Section 14. If the

Strahler Court held that piece of legislation unconstitu-

tional, the Supreme Court of Missouri surely would find

the current version of Chapter 538 even more noxious

and require swift and certain constitutional nullification.

19a

4. Chapter 538 and its Specific Provisions is Viola-

tive of Plaintiffs’ Constitutional Right of ivial by Jury.

Section 22(a) of the Missouri Constitution provides that:

“That the right of trial by jury as heretofore enjoyed

shall remain inviolate; provided that a jury for the

trial of criminal and civil cases in courts not of

record may consist of less than twelve citizens

as may be prescribed by law, and a two-thirds

majority of such number concurring may render

a verdict; and that in every criminal case any

defendant may, with the assent of the court,

waive a jury trial and submit the trial of such

case to the court, whose finding shall have the

force and effect of a verdict of a jury.”

(Missouri Constitution of 1945, Bill of Rights, Article 1,

Section 22[a]) (Emphasis added).

The medical malpractice legislation, Chapter 538, and

its specific provisions, directly and substantively interfere

with Plaintiffs’ right of trial by jury. This right has been

construed to mean the right to a jury trial as it was

recognized at the time of the adoption of the Missouri

State Constitution. Lee v. Conran, 111 S.W.1151, 1153

(Mo. 1908). That provisics: has existed virtually

unchanged since the first Missouri Constitution was

adopted in 1820.

Any civil action for a money judgment involving

factual issues has always entitled plaintiff to a trial by

jury. Jaycox v. Brune, 434 S.W.2d 539, 542-43 (Mo. 1968).

The Plaintiffs’ constitutional right to a trial by jury in this

action is in immediate and impending danger of being

violated by Chapter 538. The right to trial by jury means

that the jury passes upon all disputed issues of fact.

20a

To the extent that the Missouri legislature has sought

to “pre-judge” the maximum extent of the Plaintiffs’

money damages herein squarely and directly violates the

right to trial by jury. Plaintiffs respectfully request that

their full right to trial by jury be exercisable pursuant to

Section 22(a) of the Missouri Constitution and that Chap-

ter 538 in its entirety be stricken forthwith.

5. Chapter 538 and its Specific Provisions Denies

Plaintiffs Equal Protection and Due Process of Law

Under the United States Constitution - Due process of

law under the United States Constitution means that a

person has an opportunity to be heard at a meaningful

time and in a meaningful manner. McGowan v. Mary-

land, 366 U.S. 420, 426 (1961). The Fourteenth Amend-

ment to the United States constitution guarantees equal

protection under the law and due process of law. The

specific provisions set forth above violate the United

States Constitution in every respect and in the same

fashion as the Missouri Constitution. For these reasons,

the provisions of the medical malpractice statute, and the

statute in its entirety, must fail.

In Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163

(1803), Chief Justice Marshall stated that:

“The very essence of civil liberty certainly con-

sists in the right of every individual to claim the

protection of the laws, whenever he receives an

injury. One of the first duties of government is to

afford that protection.”

‘

(Emphasis added).

2la

III. CONCLUSION

The vast majority of medical malpractice statutes

across the country which create different rights and bur-

dens for victims of medical negligence and different priv-

ileges for malpractice defendants have been stricken

down as unconstitutional. Indeed, our experience in Mis-

souri with the prior medical malpractice statute having

been stricken as unconstitutional is powerful precedent to

the fate of this most recent legislation.

The applicability of the medical malpractice legisla-

tion affects the rights of Nicole and Julia Alice Adams to

a jury trial, equal protection of the law, open courts, and a

remedy by due process of law, all of which are guaran-

teed by the Bill of Rights of the Missouri Constitution of

1945. The Bill of Rights of the Missouri Constitution is

there to protect every citizen, rich or poor, politically

powerful or not. In striking down the provisions of the

Kansas medical malpractice statute, the Kansas Supreme

Court held that all of these rights were applicable to

every citizen, even the “little guy on the block,” and

stated:

“They (provisions of the state's Bill of Rights) are

there to protect the rights of a brain-damaged baby. a

quadriplegic farmer or business executive, and a

horribly disfigured housewife who is a victim of

medical malpractice. They are not there to see that

the will of the majority is carried out, but to

protect the rights of the minority. It is the oblig-

ation of this court in each case to_carry out its

constitutional responsibility.”

Kansas Malpractice Victim's Coalition v. Bell, 757 P.2a

25} (Kan. 1988) (Emphasis added).

22a

Given the enormous time and expense of presenting

a medical negligence action and putting on proof by both

Plaintiff and Defendants, Plaintiffs Nicole and Julia Alice

Adams respectfully request that this Court find that the

provisions of Chapter 538 should be rendered null and

void as unconstitutional under the Missouri and United

States Constitutions and bar its application in every

respect at the trial of this action.

WHEREFORE, for the above-stated reasons, Plaintiffs

Nicole and Julia Alice Adams respectfully request that

this Court enter its Order in this matter as follows:

(a) that Chapter 538, Missouri Revised Statutes

(Tort Actions Based on Improper Health

Care) is directly violative of the Missouri

and Federal Constitutional provisions set

forth herein and shall be rendered null and

void and of no effect in the trial of this

action or beyond; and

(b) For such other and further relief as this

Court deems just and proper.

Respectfully submitted,

ROBB & ROBB

/s/ Anita Porte Robb

GARY C. ROBB #29618

ANITA PORTE ROBB #30318

Mark Twain Tower, Suite 1500

106 West 11th Street

Kansas City, Missouri 64105

Telephone: (816) 474-8080

Facsimile: (816) 474-8081

ATTORNEYS FOR

PLAINTIFFS JULIA ALICE

ADAMS AND NICOLE

ADAMS

23a

CERTIFICATE OF MAILING

I hereby certify that a

copy of the foregoing was

mailed, postage-paid, on

this 4th day of February,

1991, to:

Timothy M. Aylward, Esq.

BLACKWELL, SANDERS, MATHENY,

WEARY AND LOMBARDI

Two Pershing Square, Suite 1100

2300 Main Street

P.O. Box 41977

Kansas City, Missouri 64141-6777

ATTORNEYS FOR DEFENDANTS

THE CHILDREN’S MERCY HOSPITAL

SUSAN ROUSHAR, R.N. AND >

CINDY DOOLEY, R.N.

Reid F. Holbrook, Esq.

Janet Simpson, Esq.

HOLBROOK & HEAVEN, P.A.

757 Armstrong

P.O. Box 171927

Kansas City, Kansas 66117

ATTORNEYS FOR DEFENDANT

JANE JELINEK, M.D.

/s/ Anita Porte Robb

ATTORNEY FOR PLAINTIFFS

24a

APPENDIX B

OUT-STATE MATURE CLAIMS MADE RATES

500,000/1,000,000 LIMITS

GENERAL GENERAL OB/

PRACTICE SURGERY BYN [sic]

MDA 8,300 28,596 46,118

MoMED 11,389 33,416 47,345

RCA 8,924 31,263 50,149

ST. PAUL 20,360 40,071 76,962

AVERAGE 15,090 33,336 55,211

Above as of 12/1/88

MDA 6,415 16,534 38,209

MoMED 9,471 14,207 40,254

RCA 6,340 22,303 35,967

ST. PAUL 19,963 39,623 61,292

AVERAGE 10,547 23,167 43,956

Above as of 12/1/91

Compiled by Missouri Department of Insurance

MOMEDICO Rates 1983 - 1991

Mature Claims Made Rates 500,000/1,000,000 Limits

Family Practice/

Year | Normal Deliveries | General Surgery OB/GYN

1983 $7,045 $11,669 $16,293

1984 8,806 14,686 20,366

1985 13,089 22,437 31,787 o

1986 18,327 34,034 44,506

1987 21,076 39,140 51,182

1988 22,975 42,668 55,796

1989 21,595 40,104 52,444

1990 19,183 32,883 46,585

1991 17,311 29,673 42,038

MOMEDICC wWew Claims Reported by Calendar Year

Year Number of Claims

1983 224

1984 255

1985 262 on

1986 192

1987 194

1988 158

1989 160

1990 137

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.