Sanders v. Ahmed, SC 91492.

CourtUnited States State Supreme Court of Missouri
Citation364 S.W.3d 195
Docket NumberNo. SC 91492.,SC 91492.
PartiesRonald SANDERS, Appellant/Cross–Respondent, v. Iftekhar AHMED, M.D., Respondent/Cross–Appellant, and Iftekhar Ahmed, P.A., Respondent/Cross–Appellant.
Decision Date03 April 2012


Steven L. Hobson, H. William McIntosh, Meredith R. Myers, The McIntosh Law Firm PC, Kansas City, for Sanders.

Timothy M. Aylward, Brent G. Wright, John B. McEntee Jr., Horn Aylward & Bandy LLC, Norman I. Reichel, Oliver & Reichel PA, Kansas City, for Ahmed.


I. Introduction

Ronald Sanders recovered judgments against Dr. Iftekhar Ahmed and Iftekhar Ahmed, P.A., (collectively, Defendants) for the wrongful death of his wife. After the jury returned a verdict awarding $9.2 million in non-economic damages, the trial court entered a judgment providing $1,265,207.64 in noneconomic damages, in accordance with section 538.210,1 which places a cap on non-economic damages. Mr. Sanders challenges the constitutionality of the damages award cap. Defendants appeal the judgment, the denial of reduction pursuant to section 537.060 and the denial of periodic payments under section 538.220. Mr. Sanders contends that periodic payments under section 538.220 violate the Missouri Constitution.

Because Mr. Sanders alleges sections 538.210 and 538.220 are unconstitutional, this Court has jurisdiction. Mo. Const. art. V, sec. 3. Sections 538.210 and 538.220 are constitutional. The judgment is affirmed in part and reversed in part, and the case is remanded for further proceedings related to reduction under section 537.060.

II. Factual and Procedural Background

On May 21, 2003, Paulette Sanders went to the emergency department of the Medical Center of Independence (“MCI”) with complaints of numbness in her legs and difficulty walking. Ms. Sanders had a long history of seizure disorders. Her primary care physician admitted Ms. Sanders to the hospital and requested a consultation by Dr. Ahmed, a neurologist. After reviewing her symptoms, Dr. Ahmed ordered a change in her medications from Dilantin and phenobarbitol to Depakote.

Ms. Sanders remained in the hospital, and by May 26, 2003, she had become lethargic. On May 27, 2003, Ms. Sanders suffered a focal seizure, which required emergency medical intervention. Dr. Ahmed ordered that Depakote be discontinued. Ms. Sanders suffered deterioration in both her mental and physical condition and became unresponsive to even painful stimuli. Ms. Sanders eventually was transferred to a long-term care facility, where she remained bedridden. She died in August 2005.

Ms. Sanders's husband, Ronald Sanders (hereinafter Sanders), filed a personal injury action on May 16, 2005. Sanders filed both on his own behalf for loss of consortium and as guardian ad litem on behalf of Ms. Sanders. After Ms. Sanders's death, her estate was substituted as a plaintiff in the first amended petition.

On May 28, 2008, Sanders filed a second amended petition. This petition added one new defendant, dropped the estate as a co-plaintiff and dropped Sanders's claim for loss of consortium prior to his wife's death. It also added, for the first time, a claim for the wrongful death of Ms. Sanders. On September 3, 2008, Sanders filed a third amended petition, adding another defendant. Dr. Ahmed and his employer, Dr. Iftekhar Ahmed, P.A., (collectively, Defendants) pleaded the affirmative defense of reduction,2 as allowed by section 537.060, in anticipation of any settlements. Defendants also asserted the rights housed in chapter 538, RSMo, including the cap on non-economic damages.

In October 2009, Sanders dismissed three individual defendants with prejudice; Sanders then settled with and dismissed all remaining defendants except those involved in this appeal. Defendants requested discovery into the terms of the settlements; this motion was held in abeyance until after trial, at which point the parties stipulated to the amount of the settlements. Defendants also filed a motion for setoff, citing section 537.060, which also was held in abeyance until the jury reached a verdict and at that time was denied.

On September 14, 2010, Sanders was granted leave to file an amended reply to Defendants' joint answer. This reply raised a number of constitutional objections to section 538.210.

During the September 2010 trial, Sanders submitted the case on the theory that Ms. Sanders had a defect that prevented her body from eliminating byproduct ammonia that was produced from the Depakoteordered by Dr. Ahmed; Dr. Ahmed failed to recognize and properly treat the increasing ammonia level; and, as a result, Ms. Sanders suffered irreversible brain damage that ultimately caused her death. The jury returned its verdict in favor of Sanders and against Defendants.

The jury awarded damages as follows:

                ¦For past economic damages:      ¦$ 920,745.88   ¦
                ¦For past non-economic damages:  ¦$ 1,700,000.00 ¦
                ¦For future non-economic damages:¦$ 7,500,000.00 ¦
                ¦                                ¦               ¦
                ¦Total damages:                  ¦$10,120,745.88 ¦

Following the verdict, Defendants made three motions: first, for the application of the cap on non-economic damages (section 538.210); 3 second, for the grant of a periodic payment plan ( section 538.220); 4 and third, for reduction of damages by the amount Sanders settled with joint tortfeasors ( section 537.060).5 Sanders and Defendants stipulated that Sanders settled with other defendants for a total of $625,000.

The trial court entered an amended judgment on October 22, 2010. At that time, the court found that the statutory cap on non-economic damages was $632,603.82 per each of the two defendants. The amended judgment reduced plaintiffs non-economic damages from $9.2 million to $1,265,207.64.

Sanders filed a motion to amend the amended judgment, alleging that the statutory caps were unconstitutional. The trial court overruled that motion and Defendants' remaining motions.

III. Sanders's Constitutional Claims

Constitutional challenges to a statute are reviewed de novo. Rentschler v. Nixon, 311 S.W.3d 783, 786 (Mo. banc 2010). A statute is presumed to be constitutional and will not be held unconstitutional unless it clearly and undoubtedly contravenes the constitution. Lester v. Sayles, 850 S.W.2d 858, 872 (Mo. banc 1993). The courts will enforce a statute unless it plainly and palpably affronts fundamental law embodied in the constitution. Id. The party claiming that the statute is unconstitutional bears the burden of proof. Id.

A. Right of Trial by Jury

Article I, section 22(a) of the Missouri Constitution provides [t]hat the right of a trial by jury as heretofore enjoyed shall remain inviolate.” This constitutional guaranty “means that all the substantial incidents and consequences, which pertained to the right of trial by jury, are beyond the reach of hostile legislation and are preserved in their ancient substantial extent as existed at common law.” State ex rel. St. Louis, K. & N.W. Ry. Co. v. Withrow, 133 Mo. 500, 36 S.W. 43, 48 (1896). The Missouri Constitution itself creates a “cutoff” at which point the right is evaluated. “Particularly, the phrase ‘as heretofore enjoyed’ has been interpreted to mean that the constitution protects the right as it existed when the constitution was adopted and does not provide a jury trial for proceedings subsequently created.” Hammons v. Ehney, 924 S.W.2d 843, at 848 (1996). “As heretofore enjoyed” refers to the right as it existed before the constitution's first adoption in 1820. Adams v. Children's Mercy Hosp., 832 S.W.2d 898, 907 (Mo. banc 1992) (citation omitted).

This Court has already considered whether the legislature could limit non-economic damages in a common-law personal injury claim relative to article I, section 22(a). Adams, 832 S.W.2d at 907. In Adams, this Court held that “the legislature has the right to abrogate a cause of action cognizable under common law completely.” Id. at 907 (citing DeMay v. Liberty Foundry Co., 327 Mo. 495, 37 S.W.2d 640, 649 (1931)). Adams then held, “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.” Id.

We need not decide whether Sanders is correct that Adams incorrectly stated the law as to common law causes of action. Missouri does not recognize a common-law claim for wrongful death. This Court has reaffirmed time and time again that “a claim for damages for wrongful death is statutory; it has no common-law antecedent.” State ex rel. Diehl v. O'Malley, 95 S.W.3d 82, 88 (Mo. banc 2003).6 In its present form, the action for wrongful death is provided by section 537.080.1, RSMo 2000.7 The legislature has the power to define the remedy available if it creates the cause of action. The Court's recent opinion in Overbey affirms:

[T]he legislature has the authority to choose what remedies will be permitted under a statutorily created cause of action....

The legislature in so doing, at least in regard to a statutorily created cause of action ... limited “the substance of the claims themselves,” as it has a right to do in setting out the parameters of a statutory cause of action.

Estate of Overbey v. Chad Franklin Nat'l Auto Sales N., LLC, 361 S.W.3d 364, 376 (Mo. banc 2012) (quoting Scott v. Blue Springs Ford Sales, Inc., 176 S.W.3d 140, 141–42 (Mo. banc 2005)).

Sanders attempts to avoid this result through three arguments that wrongful death is a common law cause of action rather than statutory: first, that the original proscription of the cause of action at common law was dicta; second, that Missouri did not adopt the common law...

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