Liability Reform Lessons from the ‘Common Law’: AHC Media

Robert A. Bitterman, MD, JD, FACEP Contributing Editor

Tort reform advocates and legislators need to better understand the impact of the common law when drafting language to curtail frivolous litigation or establish damages caps.1 Two recent state Supreme Court cases, one from South Carolina and one from Missouri, dampen the cause of medical malpractice liability reform.

South Carolina: Grier v. Piedmont Medical Center2

Evelyn Grier, as the administrator of the estate of Willie James Fee, sued Piedmont Medical Center for the wrongful death of Mr. Fee. As required by South Carolina’s tort reform law enacted in 2005, Ms. Grier filed a notice of intent to sue and an “affidavit of merit” from an expert witness attesting that the hospital negligently violated the standard of care in treating Mr. Fee’s bedsores, resulting in his death from sepsis.2,3

The hospital pointed out to the circuit court that the plaintiff’s expert was a nurse, not a physician, and was, therefore, not legally qualified to opine as to the cause of death. The nurse was qualified to testify that the hospital’s staff breached the standard of care in treating the bedsores, but not to whether the hospital’s breach actually caused Mr. Fee’s sepsis and subsequent death.

The court agreed that the nurse was not qualified to address the cause of death and, furthermore, it held that a proper affidavit must include a statement by the expert that the breach of the standard of care was a proximate cause of the patient’s death. The court graciously gave Ms. Grier 30 days to submit a qualifying affidavit, but when she failed to provide one, the court dismissed her claim.

On appeal to the state Supreme Court, Ms. Grier conceded that her nurse expert was not qualified to render an opinion on Mr. Fee’s death, but she maintained that a proximate cause opinion was not required by the state’s law. Thus, the plaintiff claimed that the affidavit only needed to include an expert’s opinion that the hospital breached the standard of care.2

To interpret the tort reform law’s affidavit of merit requirement, the South Carolina Supreme Court first looked to the plain language of the statute as the best evidence of what the legislature intended the law to mean.2 Furthermore, the court presumed the legislative body is “aware of the common law,” and when legislators use a “term of art” that has a well-recognized, well-defined meaning in the common law, that they “intended to use the term in that sense.”2,4

The statutory language of the affidavit of merit mandate states that “an affidavit of an expert witness which must specify at least one negligent act or omission claimed to exist and the factual basis for each claim based on the available evidence at the time of the filing of the affidavit.”5

The court then noted that under the common law,1 the term “negligent act or omission” consistently has been used to refer only to breach and never to causation.6

Remember that to establish a cause of action for negligence a plaintiff must prove four elements: 1) a duty of care owed by defendant to plaintiff; 2) breach of that duty by a negligent act or omission; 3) resulting in damages to the plaintiff; and 4) that the damages incurred proximately resulted from the breach of duty. Moreover, the South Carolina courts have always held that these are four distinct and separate elements of a negligence claim.7

Therefore, the court decided that the phrase “specify at least one negligent act or omission” in the affidavit encompasses only the breach element of a common law negligence claim, and not causation. Consequently, the expert witness completing the South Carolina “affidavit of merit” only needs to state that the defendant breached the standard of care; the expert does not need to also opine on the cause of death or link the breach to the cause of death.

The hospital tried to persuade the Supreme Court that the causation element was “implicitly imposed” by the tort reform law. After all, if a hospital or physician errs, but that error does not cause any damages to the patient, then you don’t have a valid lawsuit. The hospital asserted that the expert’s opinion must link how the alleged negligence caused the patient harm.

Once again, the court chided the hospital to be mindful of the common law — the maxim that any statute “limiting a claimant’s right to bring suit” in derogation of the common law must be strictly construed.8 In other words, the statute must clearly and unequivocally override the common law or it will not be given effect.

The hospital pressed one of the major goals of the law — to curtail frivolous litigation by ensuring plaintiffs only present legitimate claims. The court agreed that requiring the affidavit to contain an opinion regarding causation furthered that important goal; however, it found no evidence that the legislature unambiguously intended to include the causation link and, therefore, it was confined to what the statute actually says, not what it ought to say. Accordingly, Ms. Grier was allowed to proceed with her lawsuit against the hospital for the wrongful death of Mr. Fee.

The ruling obviously disappointed physicians practicing in South Carolina. Mr. Todd Atwater, CEO for the South Carolina Medical Association, said after the court ruling that, “It undermines the preliminary [lawsuit] process and the expert witness role in establishing whether the case is legitimate. The process was set up to avoid clogging up the courts and to weed out frivolous cases.”9 Mr. Atwater then added, “We’re going to have to go back [to the legislature] and fix it.”9

Missouri: Watts v. Cox Medical Centers et al

Two Missouri Supreme Court cases a couple of months apart demonstrate succinctly the difference between statutory claims and claims originating from the common law.

The first case, Sanders v. Iftekhar Ahmed, MD,10 was a wrongful death lawsuit in which the family claimed the patient’s neurologist failed to recognize and treat a fatal side effect resulting from depakote he prescribed to treat her seizures. The jury awarded $9.2 million in non-economic damages, but the court reduced the amount to $1.2 million to comply with the state’s then existent cap on non-economic damages.11 The family appealed, asserting that the state’s non-economic damages cap for medical liability cases was unconstitutional for a host of reasons, including violating the right to trial by jury.

The Supreme Court of Missouri noted that a wrongful death claim is a creature of the legislature, a statutory claim, and that Missouri has never recognized a common-law claim for wrongful death.12,13 Since the claim is not derived from the common law, there is no right to trial by jury and, hence, the damages available are not within the purview of the jury. Moreover, the court said, “To hold otherwise would be to tell the legislature it could not legislate; it could neither create nor negate causes of action and in doing so could not prescribe the measure of damages for the same.” Thus, the Supreme Court justices said the state legislature has the power to enact damages caps on statutory causes of action such as wrongful death.10

The second case, Watts v. Cox Medical Centers, et al., just decided on July 31, 2012, was much more controversial and, unfortunately, highly detrimental to the larger universe of ordinary medical malpractice claims.14

Mrs. Watts’ son was born severely brain injured because Cox Medical Centers and its physicians provided negligent health care services. The jury awarded Watts $1.45 million in non-economic damages and $3.371 million in future medical damages. The trial court entered a judgment reducing Watts’ non-economic damages to $350,000, as required by the state’s cap on non-economic damages.11,14 Mrs. Watts appealed the case.

The Missouri Supreme Court held that the cap on non-economic damages was unconstitutional because it violated the right to a jury trial. The court determined that personal injury claims for medical negligence were rooted in the common law, and as such, were governed by the section of the state constitution that provides “the right of trial by jury as heretofore enjoyed shall remain inviolate”14,15

The phrase “heretofore enjoyed” means that “citizens of Missouri are entitled to a jury trial in all actions to which they would have been entitled to a jury when the Missouri Constitution was adopted” in 1820.16 Therefore, since Missouri common law entitled a plaintiff to a jury trial on the issue of non-economic damages in a medical negligence action in 1820, Watts has a state constitutional right to a jury trial on her claim for non-economic damages for medical malpractice.

The court held that, like any other type of damages, the amount of non-economic damages is a fact that must be determined by the jury and is subject to the protections of the Constitution’s right to trial by jury. Additionally, the right to trial by jury “heretofore enjoyed” was not subject to legislative limits on damages; therefore, the plaintiff’s right for the jury to set those damages must remain “from the reach of hostile legislation.”14

The court also noted that many other states with constitutions like Missouri’s, such as Washington, Oregon, Alabama, and Florida, have also concluded that the assessment of damages is a fact-finding function of a jury, and any limit on non-economic damages that restricts the jury’s fact-finding role violates the constitutional right to trial by jury.17-20

The dissent in the case took umbrage with the majority usurping the role of the legislature to determine the amount of non-economic damages an injured person can receive in a tort action, stating “whether this is ‘good policy’ is not a question for this Court.” As Chief Justice Roberts noted in the litigation of the Affordable Care Act, courts have “the authority to interpret the law,” but “[courts] possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our elected leaders. “It is not [a court’s] job to protect the people from the consequences of their political choices.”21

The dissenting justice of the Missouri Supreme Court noted that the majority was overturning the Supreme Court’s longstanding (20 years), well-established precedent that the non-economic damages cap does not violate Missouri’s constitutional guarantee to a jury trial.22

The dissent agreed that the role of the jury is fact-finding, including determining liability and the measure of damages, both economic and non-economic damages. However, it argued that once the jury completes its fact-finding duty, it has completed its constitutional task.14 It is then the court’s duty to apply the law, and it is the legislature that establishes the substantive legal limits of a plaintiff’s damage remedy. As such, it is a matter of law, not fact.

Furthermore, the dissent noted that the Missouri Supreme Court has held that “the legislature has the right to abrogate a cause of action cognizable under common law completely,” and “if the legislature has the constitutional power to create and abolish causes of action, the legislature also has the power to limit recovery in those causes of action.”22,23 In other words, the right to jury trial does not limit the legislature’s authority to determine what the elements of damages shall be.

Additionally, many other states have held that non-economic damages caps do not violate their states’ respective constitutional right to a jury trial. These states include Nebraska, Idaho, Ohio, Maryland, Virginia, Alaska, South Carolina, Utah, Kansas, Indiana, Maine, West Virginia, and California.24

At least four other states, Florida, Michigan, Mississippi, and Indiana, await pending court decisions on the fate of their caps on non-economic or total damages resulting from medical malpractice liability claims.25


Liability reform advocates and legislators must research the common law and understand the impact it can have on the constitutionality of statutory language enacted to curtail frivolous litigation or establish non-economic damages caps. Legislatures, representing the will of the people, should have the discretion to set reasonable limits on the litigation process and the substantive damages available in order to balance the impact on injured parties with the impact on access to affordable, timely, and competent health care services.

In some states, such as Missouri, that understanding and discretion may not be enough to install reasonable tort reforms — it may take amending the state constitution, as was done in Texas to impressive salutary effect.

The tort reform battles will no doubt be enduring.


1. The ‘common law,’ also known as case law or precedent, is law developed by judges through case decisions in court, as opposed to statutes enacted by legislative bodies or regulations passed by agencies (such as CMS) of the executive branch.

2. Grier v. Piedmont Medical Center, South Carolina Supreme Court Opinion No. 27118, May 2, 2012. Available at:

3. South Carolina Code (Supp. 2011), Sections 15-36-100 and 15-79-125.

4. Quoting State v. Bridgers, 495 S.E.2d 196 (1997); see also Beck v. Prupis, 529 U.S. 494 (2000).

5. South Carolina Code (Supp. 2011), § 15-36-100(B); emphasis added by the court.

6. Citing Thomasko v. Poole, 561 S.E.2d 597 (SC 2002).

7. E.g., Bishop v. S.C. Dep’t of Mental Health, 502 S.E.2d 78 (SC 1998).

8. See Epstein v. Coastal Timber Co., 711 S.E.2d 912 (SC 2011).

9. Gallegos A. Cause of negligence not necessary for liability suit to proceed. AMA Medical News, June 11, 2012. Available at:

10. Ronald Sanders v. Iftekhar Ahmed, MD, Supreme Court of Missouri, April 3, 2012.

11. Section 538.210.1, RSMo 2000.

12. Section 537.080.1, RSMo 2000.

13. State ex rel. Diehl v. O’Malley, 95 S.W.3d 82 (Mo. 2003).

14. Watts v. Cox Medical Centers, No. SC. 91867, Supreme Court of Missouri, July 31, 2012.

15. Missouri Constitution, Article I, section 22(a). Right to trial by jury.

16. State ex rel. Diehl v. O’Malley, 95 S.W.3d 82 (Mo. 2003).

17. Sofie v. Fibreboard Corp., 112 Wash.2d 636, 771 P.2d 711 (Wash.1989); “when you start to put limitations on [the jury’s ability to find damages], you have, in fact, invaded the province of the jury and have not preserved the right to a trial by jury inviolate.”

18. Lakin v. Senco Prod., Inc., 987 P.2d 463 (Or.1999); a statutory cap violates the right to jury trial because “to the extent that the jury’s award exceeds the statutory cap, the statute prevents the jury’s award from having its full and intended effect.”

19. Nestlehutt and Moore v. Mobile Infirmary Ass’n, 592 So.2d 156 (Ala.1991); “caps infringe on a party’s constitutional right to a jury determination as to noneconomic damages.”

20. Smith v. Dep’t of Ins., 507 So.2d 1080 (Fla.1987). National Federation of Independent Business v. Sebelius, 132 S.Ct. 2566, 2579 (2012).

21. Adams by and Through Adams v. Children’s Mercy Hospital, 832 S.W.2d 898 (Mo. 1992).

22. Citing DeMay v. Liberty Foundry Co., 37 S.W.2d 640 (1931).

23. Gourley ex rel. Gourley v. Neb. Methodist Health Sys., 663 N.W.2d 43 (Neb.2003); “the trial court applies the remedy’s limitation only after the jury has fulfilled its fact-finding function.” Kirkland v. Blaine County Med. Ctr., 4 P.3d 1115, (Idaho 2000); “The jury is still allowed to act as the fact finder in personal injury cases. The statute simply limits the legal consequences of the jury’s finding.” Arbino v. Johnson & Johnson, 880 N.E.2d 420, (Ohio 2007). Murphy v. Edwards, A.2d 102 (Md.1992). Etheridge v. Med. Ctr. Hosps., 376 S.E.2d 525 (Va.1989); “Once the jury has ascertained the facts and assessed the damages, however, the constitutional mandate is satisfied.” Evans ex rel. Kutch v. State 56 P.3d 1046 (Alaska 2002); “The decision to place a cap on damages awarded is a policy choice and not a re-examination of the factual question of damages determined by the jury.” Wright v. Colleton County Sch. Dist., 391 S.E.2d 564 (S.C.1990); “A remedy is a matter of law, not a matter of fact. Although a party has the right to have a jury assess his damages, he has no right to have a jury dictate through an award, the legal consequences of its assessments.” Judd v. Dregza, 103 P.3d 135 (Utah 2004). Samsel v. Wheeler Transp. Servs., Inc. 789 P.2d 541 (Kan.1990). Johnson v. St. Vincent Hosp., Inc., 404 N.E.2d 585 (Ind.1980). Fein v. Permanente Med. Group, 695 P.2d 665 (Cal.1985). Peters v. Saft, 597 A.2d 50 (Me.1991). Robinson v. Charleston Area Med. Ctr., Inc. 414 S.E.2d 877 (W.Va.1991).

24. See for example, McCall v. United States, appeal docket No. SC11-1148 (Florida Supreme Court).