# Opposition Brief — Adams ex rel. Ridgell v. Children's Mercy Hospital > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1356%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1992 - **Citation:** 506 U.S. 991 ## Text ) 4... © Cc oul [e-= — — 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. 15 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. 16 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. 17 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.”). 18 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). 19 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: 20 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 21 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. 22 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). 23 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. 24 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 25 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). 26 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’. 27 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 la 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 V. 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 2a 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. 3a 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. 4a 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] 5a 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, v. 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 6a 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 7a 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 8a 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 9a 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- trary and capricious provision is directly in conflict with © 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: 4 ... 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 tt 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1356%3A3. Public record. Not legal advice.