Multiple Damage Caps for Claims Against Health Care Providers
by Bruce Keplinger1
In the current political and judicial climate, many arbiters of public policy are once again turning their attention to claims against health care providers in general and to limitations on damages for such claims in particular. One of the ways in which several states, including Missouri, have limited such claims is by placing a monetary limit or "cap" on the amount of non-economic damages that can be recovered against a health care provider.2 In his 2003 State of the Union message, President Bush proposed a nationwide cap on non-economic damage claims against health care providers. That proposal is currently pending in Congress.3 The Missouri cap is in place and has been found to be constitutional.4 The controversy in Missouri, however, relates to the interpretation and application of the cap. More specifically, there is controversy as to how many caps should apply in certain situations. This is the subject of the current article.
I. Background
Missouri's damage cap was passed in 1985 and became effective in early 1986. The specific applicable language of § 538.210 is:
In any action against a health care provider for damages for personal injury or death arising out of the rendering of or the failure to render health care services, no plaintiff shall recover more than [$350,000] per occurrence for noneconomic damages from any one defendant as defendant is defined in Subsection 2 of this section. . . . . [The cap changes annually based upon the Implicit Price Deflator for Personal Consumption Expendi-tures as published by the Bureau of Economic Analysis of the United States Department of Commerce.5
The 1985 legislation was the product of a task force formed among health care providers, health care insurers, and attorneys representing both plaintiffs and defendants. The task force was formed during the medical malpractice insurance coverage crisis that occurred in the mid-1980s. The proposed legislation produced by the task force included the limitation on non-economic damages. It was the intention of the task force that each defendant whose conduct directly caused or contributed to cause an injury to a plaintiff should be liable for one cap on non-economic damages.
6 In other words, for each defendant who caused injury to the plaintiff, there should be one cap.
While the intent of the drafters of the legislation is instructive, a more important and pertinent analysis on the issue of multiple caps is directed to the language of the statute itself. It is the position of the current author that the plain language of the statute calls for the plaintiff to receive only one cap per defendant for the constellation of injuries that the plaintiff suffered because of that defendant. Unfortunately, the analysis by the courts of this issue has been to the contrary.
II. Number of Occurrences
A. Romero v. United States
In Romero v. United States,7 U.S. Magistrate Judge Noce held that § 538.210 required two separate damage caps when there are two separate and distinct occurrences of medical malpractice by the same defendant and where both occurrences contribute to cause the plaintiff's injuries. Judge Noce specifically held that the term "occurrence," as used in the statute, did not mean "injury or death" but rather held "usage of 'occurrence' in Missouri state judicial proceedings refers to a singular wrongful act sued upon, not to the receipt of injury by the plaintiff."8
The facts of Romero were somewhat unusual. In that case, the plaintiff brought suit against the United States under the Federal Tort Claims Act.9 The plaintiff "alleged two instances of negligent medical malpractice against certain physicians employed by" a hospital in St. Louis.10 Although the defendant stipulated to liability, there was a dispute "over the nature, extent, and amount of plaintiff's damages."11
Before 1988, plaintiff had problems with his throat, including soreness, bleeding and occasional trouble speaking. "In March of 1988, plaintiff [was treated for] a sore throat and difficulty in swallowing."12 In May 1988, the plaintiff sought treatment at the defendant hospital due to pain in his throat, coupled with difficulty swallowing due to "a mass lesion on the supraglottis."13 The plaintiff was treated by two physicians. A biposy specimen was taken and examined by the physicians. The physicians diagnosed the plaintiff's condition as "a poorly differentiated squamous cell carcinoma with ulcer."14 The court determined that this "diagnosis fell below the standard of care" in the following respects: (1) the physicians misdiagnosed plaintiff's condition, as the specimen actually contained lymphoma; (2) "the biopsy report was unclear;" and (3) "the examining physicians failed to perform or have performed additional studies which were readily available which would have produced a correct diagnosis of lymphoma."15
As a result of the erroneous diagnosis of squamous cell carcinoma, surgery was performed on the plaintiff by surgeons who believed this surgery was appropriate for plaintiff's initial diagnosis. The court held that the surgery itself fell below the standard of care because: (1) it was performed despite the clear indication that it would not cure plaintiff's condition "regardless of what type of cancer it was;" (2) "it was performed . . . without obtaining a final determinative pathology opinion with respect to the tumor in plaintiff's nasopharynx;" and (3) it was performed even though the original "biopsy report was unclear." After surgery, the plaintiff was hospitalized and could only eat and breathe with the assistance of a tube placed through his nose. Plaintiff remained in need of treatment for the lymphoma, from which he was still suffering.16
Plaintiff's correct diagnosis was not obtained until two weeks after his initial surgery and, even then, his original diagnosis was not amended. Even with this knowledge, upon his dismissal from the hospital plaintiff was continued on an outpatient follow-up treatment for squamous cell carcinoma, from which plaintiff's treating physicians knew he did not suffer. The tumor in plaintiff's nose continued to grow, eventually displacing the breathing and feeding tube. Plaintiff visited another hospital, in another jurisdiction, where his treating physicians, unaware of the tumor, "attempted to force [the] feeding [and breathing] tube through the tumor tissue, causing laceration[s]" and bleeding.18 Plaintiff had a feeding tube surgically inserted into his stomach. An infection occurred, which necessitated another surgical procedure and the insertion of a second feeding tube. The next year, plaintiff underwent a second procedure on his throat that allowed him to begin taking in food through his mouth with severe limitation, but which ultimately led to complete loss of his voice.
Plaintiff brought suit against the defendant for damages relating to "an ear-to-ear scar around which there is a loss of sensation; the removal of plaintiff's lymphs, muscles, and glands in the surgical areas; the hardening of neck tissue; the loss of the sense of smell; the partial loss of the sense of taste; the loss of a substantial amount of hearing; substantial pain; and substantial mental anguish."19 Plaintiff claimed damages totaling $673,000. Pursuant to § 538.210, the applicable statutory cap for the year in which this case was brought was $462,000. The court held that there were two separate occurrences of medical negligence: one by the pathologists for misdiagnosing plaintiff's condition; and one by the surgeons for operating on plaintiff in the face of an erroneous and unclear biopsy report. The court opined, "While the surgery was initially predicated upon the improper pathology diagnosis, independent and separate events subsequent to the improper pathology diagnosis made the surgery inappropriate and improper."20 Additionally, the court reached this decision because the defendant had conceded multiple acts of negligence by physicians in its employ on different dates.21 Further, the trial court found that the plaintiff independently proved the elements of medical malpractice for each separate act of negligence.22 For these reasons, the court held that multiple damage caps should be applied and that plaintiff was entitled to the full $673,000 he sought in damages.23
Based on these facts, Judge Noce held that two caps on non-economic damage were appropriate. The current author, however, respectfully disagrees. The plain language of the statute indicates that occurrence refers to "personal injury or death."24 In one sentence, the statute refers to actions "against health care provider[s] for damages for personal injury or death" and then goes on to limit the recovery for non-economic damages for each such occurrence.25 In an action against a health care provider, the plaintiff can either claim that the health care provider's conduct resulted in death or in a constellation of injuries. In either case, there has been one occurrence.
B. Scott v. SSM Health Care
The issue was first addressed by the Missouri appellate courts in Scott v. SSM Healthcare, St. Louis.26 In that case, the Eastern District Court of Appeals upheld certain rulings made by the Honorable Booker T. Shaw during a trial held in the circuit court of the City of St. Louis.
In that case, Matthew Scott, a minor child of Josephine Scott, went to St. Joseph's Health Center in St. Charles for treatment of minor injuries sustained in an automobile accident. Matthew Scott returned home with his father the same day. "Two days later, Matthew complain[ed] of a severe headache" and his parents took him back to the emergency room at St. Joseph's Health Center, where Aziz Doumit, M.D. examined him.27 "[A] CT scan of Matthew's head was conducted" and Richard Koch, M.D., a radiologist employed by Radiologic Imaging Consultants ("RIC"), examined the films.28 Dr. Koch "concluded the scan was normal" and surmised that Matthew suffered from a mild concussion resulting from the car accident.29 Again, Matthew was sent home. Matthew still suffered from the headache the following day; he also became "lethargic, nauseous, and vomiting."30 When Mr. and Mrs. Scott called the hospital, Dr. Doumit told them Matthew still suffered from a concussion, and they could bring Matthew to St. Joseph's if they were very concerned. In response to this phone call, Mr. and Mrs. Scott did not take Matthew to the hospital. "Early the next morning, Matthew collapsed" with paralysis of the right side of his body.31 An ambulance took Matthew to Barnes Hospital, where it was discovered that he suffered from a "sinus infection that [had] spread to his brain," which "was [now] swelling inside his skull."32 Surgeries removed the "infected brain tissue and portions of his [damaged] skull."33 Matthew spent several weeks in a coma, underwent further surgery, and participated in rehabilitation programs. Matthew apparently suffered permanent injuries as a result of these occurrences.
Based on these facts, Matthew and his mother filed suit against St. Joseph's Health Center, Dr. Doumit, Dr. Koch, and Radiologic Imaging Consultants. The plaintiff settled with Dr. Koch and RIC prior to trial. At trial, the jury found that Dr. Koch was an agent of the hospital and assessed Matthew Scott's damages at $4,445,000, including non-economic damages of $2,500. The jury assessed 25 percent of the fault against the hospital for the conduct of Dr. Doumit and 75% of the fault against the hospital for the conduct of Dr. Koch. The trial court held that two statutory non-economic damages caps applied for Matthew and awarded total non-economic damages of $1,056,000.34
The hospital appealed on a number of grounds, including whether or not the court erred in submitting the issue of Dr. Koch's agency to the jury and whether the court erred in its failure to reduce the verdict by the 75 percent of the fault assigned to Dr. Koch, who had already settled.35 The hospital also appealed, alleging that Judge Shaw erred in finding two statutory caps for non-economic damages. The Eastern District Court of Appeals affirmed, in an opinion written by Judge Teitelman.36 In affirming the trial court, Judge Teitelman held that, even though the hospital was a single defendant and Matthew Scott had suffered one constellation of injuries as a result of his brain infection, two damage caps should apply. Judge Teitelman conceded that the "[h]ospital [was] a single defendant as defined by § 538.210.2(1)."37
"Defendant" for purposes of sections 538.205 to 538.230 shall be defined as: (1) A hospital as defined in chapter 197, RSMo, and its employees and physician employees who are insured under the hospital's professional liability insurance policy or the hospital's self-insurance maintained for professional liability purposes.38
Judge Teitelman further conceded that, since the "[h]ospital's professional liability insurance policy covered Dr. Doumit, and that the same policy also covere[d] [h]ospital for any liability based on the actions of Dr. Koch if Dr. Koch were found to be [h]ospital's agent, there [was] only one defendant in the entire case for purposes of determining the statutory limit on non-economic damages," citing Vincent by Vincent v. Johnson.39 Judge Teitelman pointed out, however, that the "Vincent [case] did not decide . . . whether a defendant hospital could be liable to a plaintiff for two non-economic damage caps based on two separate acts of negligence by its agents."40
The appellate court conceded that the issue regarding the number of damage caps was purely one of statutory interpretation. More specifically, the issue was the meaning of occurrence as used in § 538.210. If occurrence means death or injury, then one cap must apply. On the other hand, if occurrence refers to a single act of medical negligence, then multiple caps would apply.
In addressing this issue, the appellate court conceded that it must endeavor to ascertain the intent of the legislature from the words used and, if possible, give effect to that intent.41 The court did not, however, make any effort to determine or comment on the intent of the legislature. Rather, the court turned to the language of the statute itself. The court conceded that "words should be considered in their plain and ordinary meaning; and if the language of the statute is unambiguous, there is nothing to construe."42 The court held, however, that "the meaning of 'occurrence' as used in the context of § 538.210.1, is not clear and unambiguous."43 No analysis was made for this statement. Rather, the court wrote that "reference to standard English dictionaries [which were not identified] reveals that the term could plausibly be interpreted as referring either to the harm a plaintiff has sustained or to an act of medical neglect causing that harm."44 The current author, however, respectfully submits that an objective reference to standard English dictionaries' definition of "occurrence" strongly favors an interpretation that the term "occurrence" unambiguously refers to "injury or death" in the context of § 538.210.1.
Since the court in Scott found the term "occurrence" to be ambiguous, it resorted to the rules of statutory construction to aid it in finding a meaning for the term.45 In making this construction, the court turned to the historical background of the statute and then stated that the Supreme Court of Missouri has held "that it is 'readily understood from the history and text of Chapter 538 that the enactment is a legislative response to the public concern over the increased cost of health care and the continued integrity of that system of essential services.'"46 The court then conceded that the intent of the legislature was "to limit health care providers' liability for non-economic damages" but stated that "[t]he question [was] to what extent and in what manner did [the legislature] intend to limit such liability."47 In a very brief paragraph, the court then determined this issue of legislative intent by referring to Judge Noce's opinion in Romero and by making a brief reference to "the medical malpractice statute of limitations, § 516.105, which equates the term 'occurrence' with 'the act of negligence complained of.'"48
As seen above, Judge Noce's opinion in Romero does not deal with legislative intent on the issue of to what extent and in what manner the legislature intended to limit liability for non-economic damages. Further, the reference to the statute of limitations does not support the court's conclusion. The full language of § 516.105 is:
All actions against physicians, hospitals, dentists, registered or licensed practical nurses, optometrists, podiatrists, pharm-acists, chiropractors, professional physical therapists, and any other entity providing health care services and all employees of any of the foregoing acting in the course and scope of their employment, for damages for malpractice, negligence, error or mistake related to health care shall be brought within two years from the date of occurrence of the act of neglect complained of. . . .49
The court, in reading this language, says that the statute "equates the term 'occurrence' with 'the act of neglect complained of.'"
50 By the precise same analysis, § 538.210.1 equates occurrence with personal injury or death. Therefore, if only one cap per defendant is to be used, the intent of the legislature was to have only one cap per injury or death.
In its final paragraph on this point, the court acknowledged that there was a "split of authority" on this issue from other jurisdictions, but found the "analysis in Romero to be persuasive."50 Finally, the court said that if there were only to be one cap against a defendant in all circumstances, then the term "per occurrence" would not have even been put in the statute. Since the legislature is not presumed to put superfluous language in the statute,51 the court presumed that the insertion of the term "per occurrence" was a reflection of the legislature's intent that multiple caps per defendant should be allowed.
Based on all of the above, the court of appeals concluded that multiple caps were appropriate in Scott.
C. Analysis
It is respectfully submitted that the decisions in Romero and Scott do violence to the plain language of the statute. The term "occurrence" equates with "personal injury or death." This was the holding of the Supreme Court of Missouri prior to the adoption of the cap on non-economic damages.52 The interpretation of occurrence to mean only "act of negligence" is not consistent with the plain language of the statute and would lead to absurd results. For example, it is very common in medical malpractice claims for a plaintiff to state that a physician failed to properly obtain informed consent prior to a procedure, then improperly performed the procedure, then failed to promptly diagnose the unfortunate results of the procedure. Under Romero and Scott, this would constitute (at least) three occurrences. It is respectfully submitted that, if the members of the task force and the members of the legislature at the time the legislation was passed were asked, none of them would state that this was their intent.
The doctrine of multiple caps set out in Romero and Scott can quickly be extended to even more absurd results. If a surgeon, due to an inadvertent slip of the knife, severs an artery and its adjacent nerve, are two caps implicated? If the subsequent bleeding causes harm to a kidney, are we up to three caps? If the plaintiff alleges that the surgeon did not act quickly enough to reconnect the artery, do we now have four caps? If the plaintiff further argues that the surgeon did not take other proper measures to save the adjacent organ, do we have five caps? The answer to all of the above questions, obviously, is "no." Only one cap should apply. This is because there is one plaintiff, one defendant and one injury. A reading of Romero and Scott, however, would lead to the opposite, illogical, and unintended conclusion.
Recent decisions by Missouri trial courts have shown that the above examples of reading Romero and Scott to produce unintended consequences are not fanciful. For example, in Lindquist v. Family Medical Group of St. Peter's, Inc.,53 a verdict director was submitted to the jury with four different occurrences as to two separate defendants and five separate occurrences as to another defendant. The jury was asked to consider 18 different potential allocations of negligence and then have them all add up to either zero or 100 percent. This certainly cannot have been the intent of the legislature. On the other hand, in Cook v. Newman, M.D.,54 the court found that the death of plaintiff's decedent was only one occurrence, even though separate actions by separate defendants were alleged by plaintiffs. The court in Cook noted that the verdict directors submitted included "the condition that '[s]econd, defendant . . . in any one or more of the respects submitted in paragraph First was thereby negligent, and [also had the condition] [t]hird, such negligence directly caused or directly contributed to cause the death.'"56 Based on the language of this verdict director, the court concluded that "the term 'occurrence' is the negligent act or acts that 'arise out of the failure to render health care services'"56 and that the resulting injury in this case was the death of plaintiff's decedent. Therefore, even though multiple acts of negligence were alleged, the court found that there was only one occurrence. It is submitted that this is the correct result.57
Authorities from other jurisdictions also support limiting the caps to the injury. In Sander v. Geib, Elston, Frost Professional Ass'n,58 the Supreme Court of South Dakota interpreted that state's legislative enactment capping the total amount of damages that may be awarded against any health care provider for damages for personal injury or death to $1,000,000. The Supreme Court of South Dakota held that this limit applied to each entire cause of action, no matter how many occurrences constituted that cause of action. Similarly, in Butler v. Flint Goodrich Hospital,59 the Supreme Court of Louisiana held constitutional Louisiana's $500,000 cap on general damages in a medical malpractice action, regardless of the number of occurrences.
In 2003, the Missouri legislature attempted to remedy the problems caused by Scott and Romero by passing Senate Bill 280.60 The truly agreed to and finally passed version of that statute removed the phrase "per occurrence" from § 538.210.1, so that the amended statute read: "In any action against a health care provider for damages for personal injury or death arising out of the rendering of or the failure to render health care services, no plaintiff shall recover more than [$350,000] . . . for noneconomic damages from any one defendant as defendant is defined in subsection 2 of this section."60 Unfortunately, Governor Holden vetoed this bill.61 This leaves the multiple occurrence teachings of Romero and Scott in full force and effect. A measure that would have eliminated the "per occurence" language from § 538.210 and capped a plaintiff's non-economic damages at $400,000, irrespective of the number of defendants, was passed by the General Assembly during the 2003 session. However, it was veteoed by Governor Holden.
III. Multiple Parties?
A related problem raised by an expansive interpretation of the cap on non-economic damages for claims for damages for personal injury or death arising out of negligence by health care providers is that the courts are expansively considering the concept of plaintiffs and defendants. This arises both in personal injury and wrongful death actions.
In wrongful death actions, the main issue is the number of plaintiffs. Obviously, when a patient dies allegedly as the result of medical malpractice, the decedent frequently leaves a number of statutory heirs. Does this mean that each heir has his or her own statutory cap? Logically, the answer must be "no." There is one wrongful death claim and the amount of damages should not be determined by the number of heirs.
This issue should have been settled by the decision of the Southern District Court of Appeals in Burns v. Elk River Ambulance, Inc.63 In that wrongful death action, the trial court applied one monetary cap for non-economic damages even though the decedent left two heirs, the mother and the father. The Court of Appeals affirmed, finding that one cap, rather than two caps, is appropriate. In a well-reasoned decision, the court noted that the clear intention of the legislature was to provide for a single cap in this situation. The court noted that at the time the legislation was passed, the law of Missouri was that "the wrongful death statute creates but one indivisible cause of action which remains the same whether enforceable by the surviving spouse, by the minor child or children, or by the others named in the statute."64 Since the legislature is presumed to be "aware of the state of the law," all "persons entitled to sue . . . and share in [a] recovery for a wrongful death" are collectively entitled to one cap.65 The court of appeals noted that, "If Plaintiffs' argument is accepted, a widow could sue for her husband's wrongful death and recover a separate cap for herself and each of the couple's six children."66 Unfortunately, this is precisely what has begun to happen in other decisions.
In Cook v. Newman, M.D.,67 the circuit court by its order of March 17, 2003 held that each individual heir in a wrongful death action is a separate plaintiff for purposes of § 538.210. In sole support of its logic, the court relied on the notes on use for M.A.I. 20.02 and M.A.I. 36.21. These passages require that the name of each individual plaintiff must be used in a wrongful death action. This should not mean, however, that each heir gets his or her own cap.69
An even more mischievous problem is caused by the number of defendants. In Cook, the circuit court of Jackson County found that there were three defendants, even though only two doctors had treated the decedent.69 The court found that the corporation that employed the doctors was a third defendant, with a separate cap.
Again, the 2003 Missouri legislature attempted to remedy this situation in Senate Bill 280. The truly agreed to and finally passed version of this bill added new subparagraphs to § 538.210.2 as follows:
(4) Any other individual or entity that is a defendant in a lawsuit brought against a health care provider pursuant to this chapter, or that is a defendant in any lawsuit that arises out of the rendering of or the failure to render health care services; (5) No hospital or other health care provider shall be liable to any plaintiff based on the actions or omissions of any other entity or person who is not an employee of that hospital or other health care provider.70
Again, it is very unfortunate that this bill was vetoed by the governor. This leaves wide open to expansive interpretation both the concepts of
plaintiff and
defendant.
The 2004 measure, HB 1304, would have eliminated the problem regarding defendants by providing one cap irrespective of the number of defendants.71 The bill would have partially solved the multiple parties problem by adding a provision to § 538.210 that a spouse seeking damages for loss of consortium shall be considered to be the same plaintiff as their spouse.72 This certainly would go a long way toward solving the multiple parties problem.
IV. Conclusion
The Supreme Court of Missouri declined transfer of the Scott decision. As of the time this article is being written, neither the Western District nor the Southern District have ruled on this point.
This author respectfully submits that when this issue is addressed by the other two courts of appeals in Missouri, a decision more consistent with the clear language of the statute and the intent of its drafters should be made. For each constellation of injuries, there should be one statutory cap on non-economic damages per defendant. Further, when there is one constellation of injuries or a death, there should only be one plaintiff. The concept of defendant also should be given a rational interpretation so as to allow only one cap for each physician, including his or her employer. If these matters are not quickly clarified by the court system, this author suggests that the Missouri legislature can remedy the situation by amending the statute, as was unsuccessfully attempted in 2003 and 2004. This latter result should not be necessary, however, because the language of the statute is clear and unambiguous. Where one health care provider is being sued for conduct that caused one constellation of injuries to the plaintiff, only one statutory damage cap should apply.
Footnotes
1 Mr. Keplinger graduated in 1974, with highest distinction, from the University of Kansas and in 1997, cum laude, from Southern Methodist University School of Law. He currently is member manager of Norris, Keplinger & Hillman, LLC in Kansas City and Overland Park, Kansas, and his practice emphasizes the defense of professionals in state and federal courts. Mr. Keplinger wishes to thank Jennifer A. Williams for her assistance in preparing this article.
2 Missouri's cap is found at § 538.210. Examples of other analogous caps are Kansas, found at Kan. Stat. Ann. § 60-1903 ($250,000); California, found at Cal. Civ. Code § 3333.2 ($250,000); Indiana, found at Ind. Code § 34-18-14-3 ($250,000); South Dakota, found at S.D. Codified Laws St. 21-3-11 ($500,000).
3 Several pieces of legislation have proposed caps on monetary recovery in medical malpractice actions. HR5 (Health Act of 2003) passed the House of Representatives on March 13, 2003. Later, a different version of the same act was introduced as S. 607. As of the date of this writing, neither bill has become law. A second attempt to provide caps appears in S. 11 (The Patients First Act of 2003). This bill was brought to the floor of the Senate on July 7, 2003, but was withdrawn and returned to committee.
4 Adams v. Children's Mercy Hosp., 832 S.W.2d 898 (Mo. banc 1992).
5 Section 538.210, RSMo (1986). For 2003, the applicable cap is $557,000.
6 Interview with Richard V. Bradley, M.D., a member of the task force, in February 2003. See Bill L. Thompson, Legislative Tort Reform: Whither Lippard et al.? 44 J. Mo. Bar 147 (1988).
7 865 F. Supp. 585 (E.D. Mo. 1994).
8 865 F. Supp. at 593.
9 Id. at 592.
10 Id.
11 Id.
12 Id. at 588
13 Id.
14 Id.
15 Id.
16 Id.
17 Id. at 589.
18 Id.
19 Id. at 589-90.
20 Id. at 591.
21 Id.
22 Id. at 592.
23 Id.
24 Section 538.210, RSMo 2000.
25 Id.
26 70 S.W.3d 560 (Mo. App. E.D. 2002), application for transfer denied April 23, 2002.
27 Id. at 563.
28 Id.
29 Id.
30 Id.
31 Id.
32 Id.
33 Id.
34 Id. at 590. The cap for the year 2000, the year of the trial, was $528,000. See Id. at 569.
35 These points on appeal are not pertinent to the current article. The court of appeals affirmed Judge Shaw's decision in all respects.
36 The opinion was written by Judge Teitelman on January 29, 2002. By the time application for transfer was denied on April 23, 2002, Richard B. Teitelman was judge of the Supreme Court of Missouri.
37 Id. at 573.
38 Section 538.210.2, RSMo 2000.
39 70 S.W.3d at 573.
40 Id.
41 Id. at 571.
42 Id. at 570.
43 Id.
44 Id.
45 Id.
46 Id. Quoting Mahoney v. Doerhoff Surgical Servs., 807 S.W.2d 503, 507 (Mo. banc 1991) and also citing Budding v. SSM Health care Sys., 19 S.W.3d 678, 680 (Mo. banc 2000).
47 Id. at 570-571.
48 Id. at 571.
49 Section 516.105, RSMo 2000.
50 70 S.W.3d at 571. The court cited Bova v. Roig, 604 N.E.2d 1 (Ind. App. 1992); and Wiltshire v. Government of Virgin Islands, 893 F.2d 629 (3rd Cir. 1990).
51 Id.
52 O'Neal v. State, 662 S.W.2d 260 (Mo. banc. 1983); Wise v. St. Louis Public Service Co., 357 S.W.2d 902 (Mo. banc. 1962); and Jones v. Kansas City, 243 S.W.2d 318 (Mo. 1958).
53 Lindquist v. Scott Radiological Group, Inc., Case No. 002-08663 in the circuit court for the City of St. Louis.
54 Case No. 00CV-216161 in the circuit court of Jackson County, Missouri.
55 Id. at 7
56 Id. The verdict directors were based on "M.A.I. 19.01 for Multiple Causes of Damages and 20.02 for Multiple Negligent Acts Submitted."
57 Unfortunately, as will be seen below, the court in Cook was too generous in interpreting the number of parties.
58 506 N.W.2d 107 (S.D. 1993).
59 607 So. 2d 517 (La. 1992).
60 S. 280, 92nd Gen. Assem., 1st Reg. Sess. (Mo. 2003). As will be seen below, the term "defendant" is also defined so as to limit the number of caps that apply. Also, the statute apparently intended to reduce the cap back to $350,000.
61 Id.
61a Senate Substitute No. 2. H.B. 1304, 92nd Gen. Assem. 2d Reg. Sess. (Mo. 2004).
62 Id. S. 280 was vetoed by Governor Holden on July 9, 2003.
63 55 S.W.3d 466 (Mo. App. S.D. 2001).
64 Id. at 468. See Nelms v. Bright, 299 S.W.2d 483, 487 (Mo. banc 1957).
65 Id. at 486.
66 Id. at 486-87.
67 Case No. 00CV-216161 in the circuit court of Jackson County, Missouri.
68 This result is not only inconsistent with Burns v. Elk River above, but is also inconsistent with the clear implication of the Missouri Supreme Court in Vincent by Vincent v. Johnson, 833 S.W.2d 859 (Mo. banc 1992), where the Court stated that if a hospital and the defendant physician were covered by the same insurance policy, there should be one cap.
69 Id.
70 S. 280, 92nd Mo. Gen. Assem., 1st Reg. Sess. (Mo. 2003).
71 See Senate Substitute No. 2., HB 1304, 92nd Mo. Gen. Assem., 2d Reg. Sess. (Mo. 2004).
72 Id.