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Severe Burn Injury Leads to Application of Higher Noneconomic Damage Cap Limit after Plaintiff Verdict in Missouri Medical Malpractice Trial

ABSTRACT: In Missouri, noneconomic damages in a medical negligence lawsuit are limited by a statutory damage cap. There are two potentially applicable cap limits – a higher cap limit for "catastrophic" injury or death and a lower cap limit for "non-catastrophic" injury.  In a new opinion, an appellate court affirmed a trial court's decision to apply the higher "catastrophic" cap limit based on a severe burn injury and found that trial courts have significant discretion in deciding this issue.

2015 Noneconomic Damage Cap

In 2015, RSMO § 538.210 put into effect a noneconomic damage cap for use in cases against healthcare provider defendants. This includes two different cap limits, one of which will apply to any given suit. The higher limit is reserved for “catastrophic” personal injury or death, and the lower limit is for all other “non-catastrophic” injury. The statutory limits are $700,000 for “catastrophic” personal injury/death and $400,000 for “non-catastrophic” injury. These limits increase by 1.7% each year for inflation and are determined as of the date the case is tried. Velazquez v. Univ. Physician Assocs., 625 S.W.3d 445, 454 (Mo. 2021). The 2022 amounts are $787,671 and $450,098.       

In Velazquez, the Supreme Court of Missouri upheld the 2015 noneconomic damage cap as constitutional and discussed the statutory definitions of “catastrophic” and “non-catastrophic” injury.  At issue was § 538.205(1)(e), which defines “catastrophic” personal injury as “irreversible failure of one or more major organ systems.”  This is just one of six subparagraphs defining “catastrophic” personal injury.[1]

In Velazquez, the plaintiff’s expert argued the plaintiff suffered complete, irreversible damage to her bladder and urinary organ system during a c-section.  However, the defense elicited testimony that surgery may proveeffective in reversing the alleged urinary organ system failure.  After a plaintiff verdict, the defense filed motions for remittitur asking the court to reduce the noneconomic damage award to the lower cap limit. The trial court denied the motions, finding that plaintiff’s injury had caused irreversible failure of a major organ system and thus the higher cap limit applied. The Supreme Court of Missouri affirmed the trial court’s decision to classify plaintiff’s injuries as “catastrophic” and apply the higher cap limit because the plaintiff’s position was supported by competent evidence at trial.   

The Harned Opinion

Harned v. Spurlock (WD84990), a Western District Court of Appeals case, is the first appellate opinion to deal with this issue after Velazquez. The appellate court affirmed the trial court’s determination that the plaintiff’s injury was “catastrophic,” leading to application of the higher noneconomic damage cap limit.

The plaintiff in Harned had a history of mental illness and hospital admissions for suicidal ideation. Defendant, a consulting psychologist, saw plaintiff after she attempted suicide by overdosing on prescribed anti-depressant and pain medication. The defendant testified it was his job to evaluate whether plaintiff should be discharged to an inpatient psychiatric treatment facility or if she could be safely discharged with alternative plans. After his evaluation, he decided plaintiff was doing well, and she could be safely discharged to her mother’s care and follow up outpatient care. Several days after discharge, the plaintiff attempted suicide by dousing herself in hairspray and setting herself on fire, resulting in severe third-degree burns to 42% of her body, including her face, neck, torso, arms, and legs.  The plaintiff survived the ordeal and underwent four skin graft surgeries and nearly two dozen laser surgeries.

A jury returned a verdict in favor of plaintiff and awarded $560,000 in noneconomic damages. After trial, the defense argued the trial court should reduce the award by $117,426 to the amount of the “non-catastrophic” limit because plaintiff’s injury did not meet the statutory definition of “catastrophic” injury in the absence of irreversible failure of a major organ system. The trial court denied this request and entered judgment for the full amount of the award.

On appeal, the appellate court affirmed and declined to disturb the trial court’s discretionary decision. The appellate court reasoned that “major organ system” is not defined by Missouri law, but no party disputed the fact that the skin is a major organ system. Rather, the defense argued the injury did not meet the statutory definition because no expert testified the burns caused irreversible failure, and the evidence at trial showed plaintiff’s skin had healed over time through skin grafting, though some of the plaintiff’s skin had permanent contraction and scarring, with nerve damage, resulting in permanent discomfort and reduced function. The appellate court disagreed with the defense position and held that a trial court has the discretion to choose, after careful deliberation, between two reasonable alternatives, each of which is supported by competent evidence. The court found the plaintiff was not required to present “magic language,” testimony specifically stating the injury met the statutory definition. Rather, the plaintiff needed only to present competent evidence that supported the trial court’s conclusion, which the court found she did.

The Harned opinion suggests that if there are two reasonable alternatives on this issue, each supported by competent evidence presented at trial, the appellate court will not disturb the trial court’s decision. What must not be overlooked is the fact that the plaintiff has the burden of proof and must prove each element of her case by a preponderance of the evidence, including whether the injury meets the statutory definition of “catastrophic” personal injury. This is a much higher bar for a plaintiff to clear than merely producing some competent evidence in support of her position.   

[1] Missouri law, § 538.205(1) defines “catastrophic personal injury” to mean:

a. Quadriplegia defined as the permanent loss of functional use of all four limbs;

b. Paraplegia defined as the permanent loss of functional use of two limbs;

c. Loss of two or more limbs;

d. An injury to the brain that results in permanent cognitive impairment resulting in the permanent inability to make independent decisions or engage in one or more of the following activities of daily living: eating, dressing, bathing, toileting, transferring, and walking;

e. An injury that causes irreversible failure of one or more major organ systems; or

f. Vision loss such that the patient’s central visual acuity is no more than twenty/two-hundred in the better eye with the best correction or whose field of vision in the better eye is restricted to a degree that its widest diameter subtends an angle no greater than twenty degrees.