Damage Caps – The Poison Pill

We all know health care is not as safe as it should be. Studies show that an alarming number of patients are harmed by medical mistakes, and far too many die prematurely as a result; drug errors alone kill thousands more. Hardly a day passes without an injustice due to arbitrary caps on damages; caps put in place by tort reformers and special interest groups without regard to the consequences to real people with serious injuries/cases.

I recently read about a California medical malpractice case that settled for $1.5 million. A young boy fell during a normal day of play. Due to a facial injury, his parents took him to the hospital. The doctor failed to order a brain scan and two days later the brain herniated from an abscess. The child is now blind and suffers from cerebral palsy and brain damage. The injustice does not end there.

The little boy’s parents filed a medical malpractice lawsuit against the doctor and hospital; the doctor maintained no wrongdoing stating that treatment was within the standard of care. A jury found in favor of the plaintiff for $1.5 million in economic damages and $5 million in non-economic damages. Under a 35-year-old California law, this family won’t see the full award of $6.5 million because the recovery on non-economic damages is capped at $250,000, a $4.75 million windfall for the doctor and his insurance company.

How would you like to be told that although you were awarded $6.5 million, you will only receive $1.75 due to 35 year old damages caps? Some might think $1.75 million is fair and equitable, but remember this child is permanently disabled as the result of medical/hospital negligence. He will need around-the-clock care and life-long medical treatment. He will live a life of darkness and pain the rest of his days. He will never run in the park, join the baseball team or get a job. The doctor and hospital get a mere slap on the wrist because of a $250,000 limit that keeps vital sustenance money away from catastrophically injured victims, and puts it into the hands of insurance companies. Where is the “justice” in our civil justice system?

To add insult to injury, the California’s Medical Injury Compensation Reform Act (MICRA) laws limit how the health care provider has to pay for the damages they cause, even after they lose in trial. In a medical malpractice case, MICRA allows health care providers to make payments over a set period which means they can pay back the future damages they cause over the rest of the life of the victim, rather than the full award when the case settles. If that isn’t enough, in the event the victim dies earlier than expected, the balance of the future money awarded to the victim goes back to the doctor or hospital. It does not go to the victim’s family. Again, where is the justice?

Damage caps are unconstitutional, unjust, and unfair. They permit wrongdoers to escape accountability; they lower the incentive to provide quality care. Caps deny victims of fair compensation; caps minimize the value of human life and survivor suffering. Healthcare professionals aren’t being held accountable for wrongdoing; insurance companies don’t answer to anyone. Why are doctors allowed to can hide behind corporate veils, completely immune from responsibility for their actions? If you go out on the street and murder someone, you are held accountable. Why can a doctor maim, permanently disable, or cause the death of a patient, but not be accountable?

Large hospitals can afford to cut costs and take risks with patient’s lives because caps make it affordable for them to do so; $250,000 is inconsequential to them. Damage caps simply say that your quality of life is worth a quarter million dollars, period. And every life is treated the same; there is no evaluation of age, previous physical impairment, life expectancy, or any other differentiating factor. Looking at a human life in such a cold, calculated manner is despicable. Plaintiff attorneys are the last defense; they are the reason the Ford Pinto is off the road, that asbestos is no longer used, that unsafe prescription medications are recalled, and that cigarettes come with warning labels. Lawsuits lead to positive change in the practice of medicine. Without holding healthcare professionals accountable, they are more inclined to focus on generating profits than on providing the safest degree of care. Holding them responsible for full and fair compensation forces them to consider safety in the context of its effect on profits.

Negligence is negligence; serious injuries and permanent disabilities have life-long, expensive consequences. Sometimes, the circumstances of a catastrophic injury or death require an award of millions for the injured person’s sustenance, but that doesn’t matter to the pro-insurance group (some of your own legislators, most often, Republicans, are part of this group-remember that the next time you step into the voting booth). Capping damages creates a responsibility shift, from the private sector (negligent doctors and hospitals), to the public sector (social programs like welfare and Medicaid); the taxpayer is left with a bill that should have been paid by the wrongdoers. That is correct; if victims are not appropriately compensated by the insurance company, public funds (your taxpayer dollars) will be the only means of support for the injured, disabled and survivors of those killed. Attempts to cap serious lawsuits are an injustice to all citizens, leaving taxpayers to foot the bill for the responsible wrongdoers and their insurance companies. It is strange that the companies that profited from the premiums and accepted the risk bear very limited responsibility for the outcome.

Contrary to what tort reform advocates want you to believe, tort reform does not reduce taxes, does not reduce government intervention and is not “pro-business”, unless you are consistently negligent or an insurance company. Why a conservative Republican would support these concepts (aside from corporate campaign contributions) is a mystery to me. A true conservative should be, philosophically opposed to tort reform.

Tort reform, damage caps, medical liability reform, whatever you want to call it, restricts an injured or disabled person’s access to justice. They trample on our 7th Amendment rights. The threat of large damages awards is a strong deterrent against wrongdoers; it keeps us safer. Without lawsuits to weed out bad doctors, for example, they will continue to practice, and create more malpractice victims. Lawsuits send a strong message that it is financially unwise to cut corners or ignore safety concerns. If there are limited or no consequences for bad behavior, bad behavior will continue. California’s 35-year-old system needs to be abolished. It is really that simple.

I urge you to invoke your Constitutional rights. Contact your local, state and federal elected representatives; find out where they stand on these important issues. If they stand with the corporations and the tort reformers, tell them they can’t have your vote. And if they refuse to see things your way, vote for the “other guy”. Together, we must combat and put an end to the deceptive corporate takeover of our precious civil justice system.

Mark Bello has thirty-three years experience as a trial lawyer and twelve years as an underwriter and situational analyst in the lawsuit funding industry. He is the owner and founder of Lawsuit Financial Corporation which helps provide legal finance cash flow solutions and consulting when necessities of life litigation funding is needed by plaintiffs involved in pending, personal injury litigation. Bello is a Justice Pac member of the American Association for Justice, Sustaining and Justice Pac member of the Michigan Association for Justice, Business Associate of the Florida, Tennessee, and Colorado Associations for Justice, a member of the American Bar Association, the State Bar of Michigan and the Injury Board.