Kneecapping the jury in Montana: Lawmakers took away recourse for victims of malpractice

Imagine you are severely injured as a result of medical malpractice. You are permanently disabled, physically and emotionally, and will live with medical treatments and pain for the rest of your life. Your family life and intimate relations with your partner are forever shattered. 

You sue, and, after a two-week trial, the jury awards you $15 million dollars in economic damages (those with quantifiable amounts like past and future medical expenses and lost wages) and $20 million dollars in non-economic damages (those without a specific dollar value, but which are determined and awarded by the jury) for past and future pain and suffering, emotional distress, loss of established course of life and loss of consortium.  

If you–and the jury–believe you are going to get the $20 million from the negligent party’s insurers, think again! 

Since 1995 the legislature has capped those damages at $250,000. And, that’s all the insurers will pay!

There is more to this than can be reasonably discussed within my word limitations here. But, besides being deprived of the money that will make the rest of your life more bearable and less stressful, you are being deprived of two constitutionally protected rights.

First, Article II, Section 16 of Montana’s Constitution guarantees that: “Courts of justice shall be open to every person, and a speedy remedy afforded for every injury of person, property or character. . .. Right and justice shall be administered without sale, denial or delay.”  This is known a “full legal redress.” 

Several Montana Supreme Court decisions prior to 1986 honored this plain and unambiguous language and held that Article II, Section 16 was a “fundamental right,” meaning that the legislature could not infringe this right without a “compelling state interest.” You were entitled to the full legal redress the Constitution guaranteed.

But, in 1987, apparently to provide cover for employers being sued for wrongful discharge, the Legislature enacted the Wrongful Discharge From Employment Act which, among other things, expressly prohibited recovery of non-economic damages in wrongful discharge cases.  

Worse, when this prohibition was challenged, the Montana Supreme Court overruled previous case law, determined that Article II, Section 16 was not a fundamental right, and ruled that the Legislature had the power to impose the subject non-economic damage prohibition.  Meech vs. Hillhaven West, Inc., was legally flawed for reasons too numerous to discuss here.  However, that decision opened the door for the Legislature to enact, in 1995, the “cap” of $250,000 on non-economic damages in medical malpractice cases.

Aside from its other errors, the Meech Court ignored precedent and the cardinal rule of constitutional construction: “(Constitutional) language must be construed according to its plain meaning, and if the language is clear and unambiguous, no further interpretation is required . . .. (we) give a broad and liberal interpretation to the Constitution. The intent of the framers of the Constitution controls and is determined from the plain language of the words used.”

Moreover, besides being deprived of the full legal redress that Article II, Section 16 guarantees, you are also being deprived of your right to a trial by jury, guaranteed in Article II, Section 26.

In pertinent part, this section provides: “The right of trial by jury is secured to all and shall remain inviolate.” 

Again, this plain language empowers the jury—not the Legislature–to assess and determine non-economic damage amounts. The jury determines what constitutes “full legal redress.”

The Meech Court created these injustices.

Hopefully, an injured plaintiff will provide the present court the opportunity to correct these errors.

Readers may also consider reading the five-part series focused on Montana’s medical malpractice cap authored by Casey Conlon, Q2 News, Senior Reporter, Billings and MTN News. Read the final part (which contains internal links to the previous four), at: https://www.kxlh.com/mtn-investigates/malpractice-in-montana-the-future-of-the-cap.) Further, this subject is discussed in a law review comment authored by Alexander Blewett IV, at Montana Law Review, Volume 68, Issue 2, Summer 2007, Article 10.

James C. Nelson is a retired lawyer and former Montana Supreme Court Justice. He lives in Helena.