Miss. damages cap also being challenged in federal court

John O'Brien Jan. 26, 2010, 1:34pm


SEATTLE (Legal Newsline) - A Mississippi law capping non-economic damages in medical malpractice lawsuits is being challenged in a federal court in Seattle by a plaintiff who recently won $3.2 million.

A federal judge found the G.V. Montgomery Veterans Affairs Medical Center in Jackson, Miss., liable for a stroke suffered by Melvin Eason that put him in a near-vegetative state. His daughter, Bridgette Jeffries, alleged the staff miscalculated the dosage of an anti-clotting medication used to treat his venous thromboembolic disease.

U.S. District Judge Robert Lasnik wanted to award Eason and Jeffries $1 million in non-economic damages, but lowered it to $500,000 because of the Mississippi law, passed in 2002.

The plaintiffs' attorneys argue that the cap on damages discriminates between slightly and severely injured victims of medical malpractice.

"(I)n requiring a trial judge to enter a judgment at odds with the result supported by the trial record, the legislature has mandated the judge to exercise authority that would otherwise constitute an abuse of discretion, and invested him with judicial authority that the Constitution has withheld," they wrote in November.

The issue is currently before the Mississippi Supreme Court. A man who was shot in a Double Quick convenience store received $1 million in non-economic damages, the max allowed in any tort claim under the law.

Mississippi Attorney General Jim Hood is defending the constitutionality of the caps in that case. He could do the same in the Eason case.

A group of Mississippi medical organizations filed an amicus brief Monday. It notes that in the year the tort reform measure was passed, the state had the lowest number of physicians per 1,000 residents. The law has since had a positive effect on the state's economy, the brief says, and should be upheld.

"Plaintiff invites this Court to strike down (the tort reform law) based on provisions of the Mississippi Constitution," the brief says. "The Mississippi Supreme Court, however, has traditionally respected the legislature's authority to decide broad tort policy rules.

"These cases strongly suggest that the Mississippi Supreme Court would respect the separation of powers and decline to sit as a 'super-legislature' in this instance.

"Alternatively, for the sake of judicial economy and to avoid imposing on either party the potential cost of an appeal, the court should wait for the Mississippi Supreme Court to provide guidance as to the Mississippi constitutional issues presented."

From Legal Newsline: Reach John O'Brien by e-mail at jobrienwv@gmail.com.

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Mississippi Attorney General
550 High St Suite 1200
Jackson, MS 39201

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