Fall 2012: Medical Liability: Burden of Proof and Negligence Sarah Hoper MD, JD Barnes Jewish Hospital Washington University School of Medicine

Fall 2012: Medical Liability: Burden of Proof and Negligence Sarah Hoper MD, JD Barnes Jewish Hospital Washington University School of Medicine


POSTED IN: Fall 2012,

Thirty-three states have enacted some type of medical liability reform. Most of these states have caps on non-economic damages which include: pain, suffering, physical and emotional distress, disfigurement, and physical impairment. Most of these states still allow for economic damages such as future medical expenses, loss of wages, wheel chairs and other medical supplies, and nursing homes/home health aides. In Delaware, the plaintiff can only receive non-economic damages if the medical injury was maliciously intended or the result of wanton and willful misconduct. Maine only has a cap on wrongful death suits. Therefore, patients that are injured and survive have no caps on their suits, but relatives of patients that die as a result of medical negligence have a cap on their claims.

The constitutionality of caps varies by state and is an ongoing battle in some states. The constitutions of Arizona, Kentucky, Pennsylvania, & Wyoming prohibit caps. The Supreme Courts in Illinois, Alabama, Georgia, Wisconsin, Oregon & Washington ruled non-economic caps are unconstitutional. The Supreme Court of Texas found caps unconstitutional, but the public felt so strongly about caps that they voted to amend their constitution to allow caps. Thirteen states found caps are constitutional. Another thirteen states with reform have not had a constitutional challenge. Missouri, Kansas, Michigan, Florida, and Mississippi are in the midst of ligation at the level of the Supreme Court. A number of other states have ongoing litigation in the lower courts. The courts that ruled caps are unconstitutional do so on the basis of one or more of the following: the Equal Protection Clause, the Due Process Clause, Access to the Courts, the Right to a Jury Trial, and/or the Separation of Powers.

In Missouri, the Supreme Court ruled on April 3, 2012 in a 5-2 decision in Sanders v. Ahmed that statutory non-economic caps on medical liability wrongful death cases are constitutional. The court finds that the caps on wrongful death did not violate the plaintiff’s right to a jury trial under the Missouri Constitution because the constitution only applies to common law causes of action. Common law is law that is derived from judges’ decisions -which arise from the judicial branch of government, rather than statutes or constitutions -which are derived from the legislative branch of government. Wrongful death, the court explains, is purely a creature of statute, and not of common law. Therefore, since the legislature created the action of wrongful death, the legislature has the constitutional power to limit recovery in wrongful death actions. The court further states that the cap does not interfere with “jury’s ability to render a verdict, nor with the judge’s task of entering judgment; rather, informs those duties.” The question remains what will become of damage caps when applied to common law causes of action such as medical negligence. The court has heard arguments on this topic in Watts v. Cox, but has not rendered a decision.

The constitutional uncertainty surrounding non-economic caps makes it important for states to look at other avenues of tort reform such as implementing higher burdens of proof and changing the standard of negligence required to bring a case against a physician. Several states, including North Carolina, Georgia, Michigan and Ohio are trying these tactics. The burden of proof refers to the standard of evidence that must be provided in order to convict the defendant. Common standards of evidence include: beyond a reasonable doubt, clear and convincing and preponderance of the evidence. Each state has its own interpretation of these standards based on prior case law. Generally, beyond a reasonable doubt refers to proof of such convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs. This is the standard of proof needed to convict someone of a crime with a life sentence or death sentence. Clear and convincing evidence is evidence that is highly and substantially more probably to be true than not. Although there is no exact percentage of believability assigned to any of the standards, it is easy to think of this standard as being 75% believable. Therefore, if a jury found that the evidence was 75% true/believable, the jury should convict the defendant. The preponderance of the evidence, also known as the balance of probabilities, is met if the proposition is more likely to be true than not. In mathematical terms, we might think of this as a greater than 50% probability of the evidence being true. The higher the standard of evidence the more difficult it is to convict the defendant. In North Carolina, the standard of proof was changed from a preponderance of the evidence (>50% probability that the physician was negligent) to clear and convincing (>75% probability that the physician was negligent). There has not been a case using this new standard of evidence, so it is unclear exactly how this change will affect medical liability in North Carolina since the interpretation of these standards is usually based on prior case law.

Georgia, Michigan and Ohio are all attempting to increase the standard of negligence needed to bring a medical liability case. In most states the plaintiff only needs to prove the physician was negligent, however in these states the plaintiffs may soon have to prove the physician was grossly negligent. Negligence is the failure to exercise reasonable care. An example of negligence in medicine is the failure to meet the medical standard of care. Gross Negligence is the conscious and voluntary disregard to the need to use reasonable care which is likely to cause foreseeable grave injury or harm. An example of gross negligence is showing up for your shift drunk. Michigan, has gone a step further requiring that physicians receive a notice of intent to sue 6 months prior to the date of being sued, limiting the statute of limitations to 2 years, requiring an affidavit of merit on the case from a physician in the same specialty and by implementing rules as to who can testify as an expert witness.

In an environment of uncertainty surrounding medical liability non-economic caps, stricter standards of evidence and negligence are a good alternative to caps. In states where caps are constitutional changing the burden of proof and negligence requirements will give additional protection to physicians.