How Mississippi’s new damage caps will be applied to medical malpractice cases will be decided in a pretrial appeal now being decided by the state Supreme Court based on a lawsuit pending in Vicksburg.

In the case, survivors of Stacey Kay Klaus argue that the $500,000 maximum should be per-heir as opposed to per-claim because the state cap, enacted in 2004, is ambiguously worded.

Klaus died Jan. 25, 2003, at University Medical Center in Jackson, according to documents in the case, of complications following a respiratory arrest, which occurred five months after a colon operation was performed on Klaus at the defendant hospital, River Region Medical Center. She was 40.

In the appeal, plaintiffs’ attorney Jerry Campbell of Vicksburg questioned Mississippi Code 11-1-60, commonly known as the &#8220malpractice-capping statute,” passed along with other tort reform measures and adding caps for noneconomic damages to civil litigation between private parties in Mississippi for the first time.

This law states that &#8220in any case of action filed on or after Sept. 1, 2004, for injury on malpractice or breach of standard of care against a provider of health care,” … &#8220in the event the trier of fact finds the defendant liable, they shall not award the plaintiff more than $500,000 for noneconomic damages.”

Mississippi Code 11-1-60 (1)(a) defines &#8220non-economic damages” as &#8220subjective, non-pecuniary damages arising from,” among numerous other things, &#8220death, pain, suffering” and &#8220loss of society and companionship.”

Campbell argued that because there are wrongful-death beneficiaries in the Klaus case (father, Sylvain Klaus; mother, Alta Klaus; half-sister, Marian Klaus; and the estate of Stacey Kay Klaus), the statute is ambiguous when construed with Mississippi Code 11-7-13, commonly known as the &#8220wrongful-death statute.”

&#8220The ambiguity exists because it cannot be determined if this cap of $500,000 on noneconomic damages as provided by Section 11-1-60 limits the award of $500,000 for the entire suit or if each wrongful-death beneficiary is limited to $500,000,” Campbell said.

Along with its ambiguity, Campbell also said he believes this law is unfair.

&#8220It just doesn’t make sense to me,’ Campbell said. &#8220I don’t understand how it’s fair that an only child and only beneficiary in one case gets to potentially collect the entire $500,000, while a case with four beneficiaries has to split that $500,000 four ways. This law just punishes large families as far as I’m concerned.”

River Region argued the statute is clear and received a Circuit Court ruling in agreement.

The Supreme Court heard arguments July 24 on the question and, after it rules, the case will proceed.

&#8220This decision will be a huge factor in the remainder of the trial,” Campbell said.

Other states with caps have dealt with the issue and have split on whether there is one cap per case or one cap per plaintiff.