It seems nearly every month legislators from one state or another attempt to enact caps on non-economic pain and suffering damages in malpractice cases. Some time down the road, once the caps are enacted they are then challenged as unconstitutional, and the state Supreme Court is called upon to render a decision. Then the whole process begins again – at least in Missouri.

The state of Missouri enacted a $350,000 cap on non-economic damages in 2005. In 2012, the Missouri Supreme Court found that the caps violated the common-law rights of citizens to sue for damages. Legislators tried, unsuccessfully, to reinstate the caps last year, and now two Republican lawmakers are trying again.

Representative Eric Burlison has filed House Bill 1173 in an effort to reinstate the $350,000 cap by creating a statutory cause of action in malpractice cases, so they are no longer considered under common law. The bill expresses concern that unlimited malpractice damages will increase the costs of malpractice insurance for physicians. A 2012 analysis from the Missouri Foundation for Health has found claims against doctors dropped about 24% since the caps were enacted in 2005.

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Additionally, Senator Bob Dixon has proposed Senate Bill 583 with the aim of changing the standard of proof needed for non-economic damages in medical malpractice suits to make them more difficult to win.

The current standard of proof is “preponderance of the evidence,” which means allegations are more likely true than not. Dixon’s proposed change would make the standard “clear and convincing evidence,” which indicates a high probability of the accusation being true. This standard is second only to “beyond a reasonable doubt,” the standard used in criminal cases.

Both HB 1173 and SB 583 are similar to bills filed in 2013 that failed to be enacted. The bills will be debated this month.