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Personal Injury Lawyers File a Motion to Strike Affirmative Defenses in Missouri Medical Malpractice Lawsuit

By Benjamin J. Sansone, Esq.

On behalf of a decedent's family we have filed a Missouri medical malpractice and wrongful death lawsuit against a St Louis bariatric surgeon, his resident that performed the surgery, and the St Louis hospital.

Since the 2005 Missouri tort reform bill passed the defense always pleads multiple affirmative defenses relying on several provisions of the tort reform bill. The bill has never been squarely challenged on constitutional grounds as the issue has not become ripe for the Missouri Supreme Court to hear as no case has been appealed to the Supreme Court and needed to be resolved on the constitutional grounds. The closest it has come was in March of 2010, the Klotz case (See Missouri Injury Lawyer Blog Article: Supreme Court Hears Constitutionality of Missouri Damage Caps) was heard by the Supreme Court, however the case was resolved on issues of retroactive application of tort reform, therefore the constitutional issues were not addressed in the opinion. See Missouri Medical Malpractice Awards Constitutional?

In order to try and get this issue to the Supreme Court sooner we have taken the initiative to file a Motion To Strike the Affirmative Defenses relying on tort reform provisions, specifically damage caps. See Plaintiff's Motion to Strike Affirmative Defenses based on Missouri's 2005 "Tort Reform" Laws Being Unconstitutional

As stated in our Missouri wrongful death lawsuit's Motion to Strike, the Supreme Court Judges have indicated that they would rule the 2005 law unconstitutional, at least in part, by stating:

?I write separately to emphasize that the caps on non-economic damages imposed by section 538.210 also violate the constitutional guarantee of equal protection under article I, section 2 of the Missouri Constitution.?

- Judge Tietelman, Klotz, 311 SW 3d at 782

?[T]he legislation, section 538.210, retains the common law action but displaces the finding of the juries with a legislated limitation on damages. [?] This legislated interference impairs the right of trial by jury "as heretofore enjoyed." As such, the right to trial by jury does not "remain inviolate." It is, in fact, violated.?

? Judge Wolff, Klotz, 311 SW 3d at 780

Medical Malpractice Law: Illinois Strikes Down Damage Caps as Unconstitutional

Full post as published by Missouri Injury Law Blog on January 08, 2011 (boomark / email).