Adams By and Through Adams v. Children's Mercy Hosp.

Decision Date19 May 1992
Docket NumberNo. 73867,73867
Citation832 S.W.2d 898
PartiesNicole ADAMS, a minor, By and Through her legal guardian and next friend, Julia Alice ADAMS, and Julia Alice Adams, individually, Appellants, v. The CHILDREN'S MERCY HOSPITAL, et al., Respondents.
CourtMissouri Supreme Court

Gary C. Robb and Anita Porte Robb, Kansas City, for appellants Adams.

Timothy M. Aylward, Sally L. Thieman and Cynthia L. Dillard, Kansas City, for respondent Children's Mercy Hosp.

Thomas M. Sutherland, Janet M. Simpson and Reid F. Holbrook, Merriam, Kan., for respondent Jelinek, M.D.

Lori Andrews and Cynthia Morgan, Chicago, Ill., for amicus curiae People's Med. Soc.

Ronald R. McMillin, Lori J. Levine; and Richard S. Brownlee, III, Jefferson City, for amicus curiae Missouri Hosp. Ass'n.

ROBERTSON, Chief Justice.

This appeal from a judgment in a medical malpractice suit challenges, among other things, the constitutionality of portions of this state's legislative response to increases in the cost of health care services resulting from a perceived medical malpractice insurance crisis. We have jurisdiction. Mo.Const. art. V, § 3. We conclude that the challenged provisions of Chapter 538, RSMo 1986, are constitutional. 1 The remaining issues are transferred to the Court of Appeals, Western District, for appellate review.


Proper medical care has the power to restore, to turn a temporary tragedy into a triumph over disease and injury; negligently provided medical care has the power to destroy, to turn a temporary trauma into a permanent tragedy. In this case, medical negligence did not make whole; it ripped a life asunder; it turned the trauma of household burns into the tragedy of total dependence, of brain damage, of a severe and permanent handicap.

On March 25, 1988, Nicole Adams, a gifted eight-year-old, practiced in her family kitchen a singing and dancing routine for an upcoming recital. Julia Alice Adams, Nicole's mother, watched Nicole dance as she prepared the evening meal. The dance routine took Nicole near the stove. She struck the handles of two skillets, which overturned, dumping hot grease and frying hamburgers onto the right side of Nicole's body.

Mrs. Adams rushed Nicole to Children's Mercy Hospital (the Hospital). The Hospital admitted Nicole and scheduled her for skin graft surgery on March 30, 1988. That morning, Dr. Ronald Sharp performed the skin graft surgery. Anesthesia Associates of Kansas City, Inc. (Anesthesia Associates), which operated the Hospital's anesthesia department under contract with the Hospital, assigned Dr. Jane Jelinek-Boozalis (Dr. Jelinek), an anesthesia resident from the University of Kansas Medical Center, to the case. Dr. Robert Binda and Dr. Peter Mestad, both of Anesthesia Associates, supervised Dr. Jelinek.

During the operation Nicole received 7,000 cc's--7 liters--of crystalloid solution intravenously. Crystalloid is a saline solution of 99 percent water and 1 percent other dissolved substances. It is used to replace body fluid lost during surgery. A person of Nicole's weight (approximately 60 pounds) would normally receive no more than 2,350 cc's of crystalloid.

The introduction of such a massive amount of fluid caused Nicole's body to swell. In the recovery room, Dr. Mestad, who supervised Nicole's anesthesia recovery and who was aware of the amount of crystalloid Nicole had received during the procedure, removed the endotracheal tube from Nicole. This tube served to protect Nicole's airway. Once Dr. Mestad removed the tube, fluid-induced swelling closed Nicole's trachea. Respiratory and cardiac failure followed. No oxygen reached Nicole's brain for approximately six minutes.

Nicole is now cortically blind. She suffers motor disabilities which cause her to walk very clumsily and awkwardly. She can barely move her fingers in a coordinated manner or in any intended sequence. Her brain is significantly damaged; she now has epilepsy; she can no longer add two plus two. She will never be able to function independently or support herself by working.

The jury returned a verdict against the health care defendants and apportioned fault as follows:

                Children's Mercy Hospital  20%
                Nurse Rousher               0%
                Nurse Dooley                0%
                Dr. Jelinek                18%
                Dr. Sharp                   2%
                Dr. Binda                  10%
                Dr. Mestad                 50%
                Dr. Powers                  0%

The jury assessed the Adamses' total damages in excess of $20 million. That amount included over $13 million in "noneconomic" damages. The trial court reduced the judgment as directed by Section 538.210.

The Adamses and the Hospital filed motions for new trial and, when those were not successful, appealed. Dr. Jelinek failed to move for a new trial. She now seeks plain error review.


On appeal, this Court decides only the constitutional questions raised in the Adamses' appeal. The Adamses contend that those portions of Section 538.210 limiting noneconomic damages; of Section 538.220 permitting payment of future damages in periodic or installment payments; and of Section 538.230.2 modifying joint and several liability violate a host of provisions of the Missouri Constitution: (1) the open courts provision, Mo.Const. art. I, § 14; (2) right to trial by jury, Mo.Const. art. I, § 22(a); (3) equal rights and opportunities, Mo.Const. art. I, § 2; (4) due process, Mo.Const. art. I, § 10; (5) special law, Mo.Const. art. III, § 40(28); (6) privileges and immunities, Mo.Const. art. I, § 13; (7) one subject requirement, Mo.Const. art. III, § 23; (8) separation of powers, Mo.Const. art. III, § 1; and (9) the constitutional directives for amending statutes, Mo.Const. art. III, § 28. In due course, we will consider plaintiffs' constitutional claims. First, however, it is necessary to lay out the factual background upon which plaintiffs found those claims.


The jury returned its verdict in this case in favor of plaintiffs Nicole Adams and her mother, Julia Alice Adams, in the following amounts:

For Nicole Adams:

                      Past Economic Damages ...... $     141,379.00
                      Future Economic Damages .... $     760,042.00
                      Future Medical Damages ..... $   4,947,311.00
                      Past Non"Economic Damages .. $   3,905,000.00
                      Future Non"Economic Damages  $  10,000,000.00
                Total Damages .................... $  19,750,732.00  2
                For Julia Alice Adams
                      Past Non"Economic Damages .. $     250,000.00
                      Future Non"Economic Damages  $          "0"
                Total Damages .................... $     250,000.00

But for the intervention of Chapter 538, plaintiffs claim that the judgment entry should be as follows:

                VERDICT FOR NICOLE ADAMS                $  19,750,732.00
                Less:  Present Value of Settlements     -   4,500,000.00
                        Paid to Date                    $  15,250,732.00
                Plus:  Pre" and Post"Judgment Interest
                        Pursuant to Section 408.040
                        (1/9/90 to 10/9/91)             k   2,494,638.00
                TOTAL JUDGMENT FOR
                NICOLE ADAMS                            $  17,745,370.00
                  (Not Including Court Costs)
                VERDICT FOR
                JULIA ALICE ADAMS                       $     250,000.00
                Less:  Present Value of Settlements     -   1,005,779.00
                TOTAL JUDGMENT FOR
                JULIA ALICE ADAMS                       $          "0"

Applying Chapter 538 to the jury's verdict in this case, the trial court entered judgment as follows:

                                           VERDICT FOR NICOLE ADAMS
                Total Economic Damages .................................... $   5,848,732.00
                Less: Medical Bills Paid by The Children's Mercy Hospital . -      28,232.25
                Less: Medical Bills Absorbed by The Children's Mercy
                  Hospital ................................................ -     114,184.52
                Net Economic Damages ...................................... $   5,706,315.00
                TOTAL NON"ECONOMIC DAMAGES ................................ $  13,905,000.00
                Total Economic Damages:
                ($5,848,732.00 x .38) 3 ................................... $   2,222,518.16
                ($430,000.00 x 2 defendants) .............................. $     860,000.00
                (Not Including Court Costs) ............................... $   3,082,518.16

Section 538.210 provides:

In any action against a health care provider for damages for personal injury or death arising out of the rendering of or the failure to render health care services, no plaintiff shall recover more than three hundred fifty thousand dollars per occurrence for non-economic damages from any one defendant. 4

Section 538.220 permits any party to a medical malpractice action to request, before entry of the judgment, that the court order that "future damages be paid in whole or in part in periodic or installment payments if the total award of damages in the action exceeds $100,000.00." The statute requires the paying party to post sufficient security to assure payment of the judgment.

Section 538.230.2 modifies joint and several liability. "[A]ny defendant against whom an award of damages are made shall be jointly liable only with those defendants whose apportioned percentage of fault is equal to or less than such defendant."


A statute is presumed to be constitutional and will not be held to be unconstitutional unless it clearly and undoubtedly contravenes the constitution. A statute will be enforced by the courts unless it plainly and palpably affronts fundamental law embodied in the constitution. Blaske v. Smith & Entzeroth, Inc., 821 S.W.2d 822, 828 (Mo. banc 1991), citing Winston v. Reorganized School District R-2, Lawrence County, 636 S.W.2d 324, 327 (Mo. banc 1982). When the constitutionality of a statute is attacked, the burden of proof is upon the party claiming that the statute is unconstitutional. Blaske, 821 S.W.2d at...

To continue reading

Request your trial
62 cases
  • Verba v. Ghaphery
    • United States
    • West Virginia Supreme Court
    • December 13, 2000
    ...527 S.E.2d 831 (1999). Other courts have observed that "[r]ational basis review is minimal in nature." Adams ex rel. Adams v. Children's Mercy Hosp., 832 S.W.2d 898, 902 (Mo. 1992). Therefore, it is our duty to uphold W. Va. Code 55-7B-8 "if the purpose of the act is not beyond legislative ......
  • Certification of Questions of Law from U.S. Court of Appeals for Eighth Circuit, Pursuant to Provisions of SDCL 15-24A-1, Matter of
    • United States
    • South Dakota Supreme Court
    • January 31, 1996
    ...duration of that policy remains within the purview of the Legislature. Behrns v. Burke, 89 S.D. 96, 103, 229 N.W.2d 86, 90 (1975); Adams, 832 S.W.2d at 904; Strykowski, 261 N.W.2d at 442. In addition, the Legislature is free to not only act on an existing medical crisis, it also has the aut......
  • Estate of Mccall v. United States
    • United States
    • Florida Supreme Court
    • March 13, 2014
    ...Cal.3d 137, 211 Cal.Rptr. 368, 695 P.2d 665 (1985); Zdrojewski v. Murphy, 254 Mich.App. 50, 657 N.W.2d 721 (2002); Adams v. Children's Mercy Hosp., 832 S.W.2d 898 (Mo.1992), overruled on other grounds by Watts v. Lester E. Cox Med. Ctrs., 376 S.W.3d 633, 636 (Mo.2012); Judd v. Drezga, 103 P......
  • Arbino v. Johnson & Johnson
    • United States
    • Ohio Supreme Court
    • December 27, 2007
    ...(Peters v. Saft (Me.1991), 597 A.2d 50); Maryland (Murphy v. Edmonds (1992), 325 Md. 342, 601 A.2d 102); Missouri (Adams v. Children's Mercy Hosp. (Mo.1992), 832 S.W.2d 898); Montana (Meech v. Hillhaven W., Inc. (1989), 238 Mont. 21, 776 P.2d 488); Nebraska (Gourley v. Nebraksa Methodist He......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT