Despite their Promise to Uphold Missouri’s Constitution, Legislature Again Tries To Limit Right to Jury Trial

The Missouri Supreme Court recently held that laws attempting to put “‘caps” on how much a jury can award in medical malpractice cases violates the Missouri Constitution’s provisions. Specifically, the Missouri Constitution says that the right to a jury trial shall remain “inviolate.” The Supreme Court held that it’s a sham to say that you have a right to a jury trial if the judge then rewrites the jury’s decision and disregards it completely.

Despite the clear wording of the Constitution and their sworn promises to uphold and defend the Constitution, Missouri’s legislature is yet again attempting to do an end run around the right to a jury trial by passing a new law which is very similar to the old one. They’re attempting to get around this provision by eliminating Missouri’s citizens’ common-law rights as in existence before the Constitution, and creating a “new,” and clearly inferior, right to file medical malpractice claims if you’re injured by a physician’s carelessness.

It’s incredibly ironic that the Republican-led legislature, most of whom are big fans of the Tea Party and its professed adherence to strict construction of the Constitution, have no problem tearing up the Constitution when it comes to provisions that benefit Missouri citizens generally but are directly against the interests of their large campaign contributors (such as doctors, hospitals and insurance companies). It’s been well proven that making doctors accountable to patients when they make mistakes makes doctors more careful, cuts down on medical errors and clearly improves our healthcare system. The myth put forth by doctors, hospitals and insurance companies in every state in the country that holding doctors accountable leads to “defensive medicine” and leads doctors to “leave our state”has been exposed as completely false. See these links:

Article on Five Myths About Medical Negligence

For a good explanation of how the insurance companies’ villainizing plaintiff’s lawyers has nothing to do with merit and everything to do with stock prices and insurance companies returns on their investments, see this link:

The Tort Reform Myth

I strongly urge all Missouri citizens to call their legislators immediately to tell them that they won’t stand for these attempts to take away their Constitutional rights!! Nobody expects to get hurt by a healthcare provider’s mistakes, but it happens every single day. And simply assuming it’s never going to happen to you is a very dangerous tact. You may need those rights someday, and if you do nothing now, they might not be there when you need them.

President Obama Signs SMART Act

By Sam Baker – 01/10/13 05:38 PM ET

Rep. Tim Murphy (R-Pa.) took a victory lap Thursday as President Obama signed a bipartisan Medicare bill.

The legislation changes the way Medicare collects money from people whose negligence caused a patient to incur medical bills. Murphy said the new law will streamline an outdated process, making it easier to close cases and bring money into the Medicare program.

Murphy said the legislation — the Strengthening Medicare And Repaying Taxpayers (SMART) Act — stemmed from a constituent who was in a car accident and had to wait years for a settlement on medical bills covered by Medicare.

“With the SMART Act now signed into law, Lorraine and thousands of other senior citizens will no longer needlessly suffer due to bureaucratic red tape,” Murphy said in a statement.

The bill’s lead Democratic sponsor, Rep. Ron Kind (D-Wis.), also heralded the bill’s enactment Thursday.

“The last thing Wisconsin seniors need is confusion or inefficiency surrounding their Medicare coverage,” Kind said in a statement.

Read more:

Bipartisan Support Passes Legislation Designed to Decrease Medicare’s Blocking Lawsuits Settlements

Congress Passes SMART Act Requiring Medicare To Promptly Provide Information

After many years of bipartisan calls for action, the United States Congress has finally passed a bill addressing a long-standing problem which has been plaguing attorneys, insurance companies and injury victims for years. If the president signs this legislation, called the Strengthening Medicare and Repaying Taxpayers (SMART) Act, Medicare’s longstanding practice of causing tremendous delays to parties desperately trying to settle lawsuits will end.

Most people don’t realize that if a person who is injured by another’s carelessness receives Medicare benefits to pay part of their medical bills and then makes a claim against the person who injured them, Medicare has the legal right to get repaid out of any money recovered. This right is called a “lien.” As anyone who has ever dealt with Medicare knows, however, it is extremely difficult to get Medicare to tell you anything, or even get a live person on the phone without sitting on hold for an hour or more.

The upshot of all of this is that for years many lawsuits have existed where both sides agree in concept to a settlement but can’t actually settle because they all lack the information from Medicare that they need to take the actions that Medicare requires them to take. In the past, there have been situations where it has taken me over a year to actually get Medicare to give me a final number of how much they should be repaid.

This is completely unfair to everyone involved. Many times, the parties have already reached an agreement about settlement, but Medicaid’s foot dragging means that the settlement cannot be finalized because of the government’s high-handed actions. Medicare makes it clear that if the lawyer representing the injured person simply gives all the settlement money to the injured person, Medicare will sue that lawyer personally to recover the money. Similarly, Medicare rules say that the insurance company that pays the money to the injured person also is on the hook, so they better not settle without making sure Medicare gets repaid in full. So the end result is that because of these Medicare rules, lawsuits involving Medicare recipients have been dragged out for a ridiculously long amounts of time.

It’s an unusual situation these days when both insurance companies and plaintiff’s lawyers agree on something. But here everyone involved agreed that it’s unfair for Medicare to insist on action from these people and then refuse to give them the information necessary for them to take that action.

After years of requests from insurance companies and trial lawyers alike, Congress has finally taken action. This new bill places time limits on Medicare and puts in place other measures to speed up and streamline the Medicare lien resolution process.

Mr. President, please sign the SMART Act!