A case before the Missouri Supreme Court could decide whether wrongful death should fall under the state's new law capping non-economic damages on medical malpractice lawsuits.
Pat Hagerty represents the family of Shannon Dodson, who died in 2011 during what was described as a routine medical procedure at Mercy Hospital in St. Louis.
In December 2013, Dodson's family was awarded $9 million in non-economic damages, but a trial court reduced that award to $350,000 after Gov. Jay Nixon signed the new law capping those damages. The state Supreme Court in 2012 had struck down the limits on malpractice cases. At issue was whether the limits remained in a wrongful death case.
The family's attorney argued, "It's inconceivable that we could ever articulate a basis to say 'We're going to decide the limit of damages based solely upon whether the person lives or dies'. If we're going to do that, wouldn't you expect it to be the reverse, that we would cap someone who's alive, who could say 'goodnight' to their family, who gets to do what they can do with their limitations from their injuries?"
Attorney Paul Venker represented Mercy before the high court. He argued that while there is a precedent in common law for medical malpractice awards involving personal injury, that's not the case for wrongful death.
"A wrongful death action has not been recognized as existing in common law (in Missouri)," Venker said, "and therefore the rulings of this court about the jury trial, as of 1820, is such that that right doesn't apply to wrongful death actions."
The reference to 1820 go back to the court's malpractice decision and what common law held when Missouri became a state.
Venker also told the court that there should be different policies in wrongful death and personal injury suits, and that lawmakers who passed a 2005 cap law meant for some limits to stay in place, even if caps on noneconomic damages were later struck down for certain types of medical malpractice cases.
The Missouri Supreme Court took no action Wednesday, but is expected to issue a ruling later.
The Associated Press contributed to this report.
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