Missouri lawmakers have had their eyes on reinstating liability limits for medical malpractice cases ever since the state Supreme Court struck down an existing cap on damages in the summer of 2012. That ruling came in a case involving a baby that was born with severe brain injuries as a result of medical negligence. The state Supreme Court ruled 4-3 that the $350,000 cap on non-economic damages in jury awards violated the right to trial by jury.
Although the Missouri Supreme Court did the right thing, tort reformers pushed back. On May 7, 2015, Governor Jay Nixon signed Senate Bill 239 into law and reinstated damage caps for medical malpractice cases. The new laws places a cap in medical malpractice lawsuits of $400,000 for non-economic damages and $700,000 for a catastrophic injury – death, paralysis, loss of 2 or more limbs, brain injuries involving permanent cognitive impairment, irreversible major organ failure, or severe vision loss. It also includes a clause to increase the limits by 1.7 percent each year.
In any personal injury or wrongful death case, reducing damages is a bad idea. By placing limits on amounts that wrongdoers are required to pay, state legislatures remove incentives for corporations to put safety over profits. They also disable juries from being able to properly compensate and, in some circumstances, punish the perpetrators. If a negligent corporation causes $10 million worth of damage but is only legally required to pay $400,000, what prevents them from making business decisions about safety? If the cost of correcting a dangerous condition is substantially higher than the risk of damages in litigation, what does the negligent company do? When your “best day in court” results in a paltry $400,000 against millions and billions in profits, and you have the financial power to make plaintiff endure years of litigation, Missouri and other states like it are creating a chilling effect on litigation. In a real sense, they are penalizing the injured party for having the audacity to sue a serial wrongdoer.
Damage caps are an attempt to curry favor with corporate donors and grant them limited immunity from negligence. Caps allow negligent doctors to keep practicing medicine, defective products to stay on the market; they limit accountability to the American people. Our civil justice system is designed, in part, to provide redress for injuries caused by wrongdoers; when it fails to do so, the system is broken.
The right to trial by a jury is a fundamental constitutional right. Any attempt to take power away from a jury is an attempt to take power away from citizens. Why isn’t the 7th Amendment as important to these legislators as the 2nd? Why should the medical profession be granted limited immunity from negligence?
When tort reform bails out irresponsible corporations, doctors and hospitals, it closes the courthouse doors to victims, undermines our constitutional protections, and leaves taxpayers holding the bill. Taxpayers should not be forced to give up fundamental rights; they should not be forced to bail out negligent corporations, doctors and hospitals. The focus should be on improving safety not on undercompensating the victims of breaches of safety. Want to reduce lawsuits and compensation? Fix the safety problems and get rid of the serial perpetrators rather than restricting the recoveries and court access to victims.
Mark Bello is the CEO and General Counsel of Lawsuit Financial Corporation, a pro-justice lawsuit funding company.
@thumbnail.jpg "Mark M. Bello")
Experienced attorney, lawsuit funding expert, certified civil mediator, and award-winning author of the Zachary Blake Legal Thriller Series. The series features super-trial lawyer Zachary Blake handling "ripped from the headlines" legal and political issues of the day. The series currently consists of Betrayal of Faith, Betrayal of Justice, Betrayal in Blue, Betrayal in Black, and Betrayal High, with a sixth Zachary Blake novel due out later this year. To learn more about these topical social justice legal thrillers. please visit markmbello.com. Mark is a member of the State Bar of Michigan, a sustaining member of the Michigan Association for Justice, and a member of the American Association for Justice.
10 Comments
Alex
Yes, there is little incentive to fix the root cause of malpractice, if we enable folks to do practice. It's common sense,it's the reason we have dui laws,speeding tickets, even the criminal justice system and the police.
Even worse,its unfair guaranteed profit, the insurance companies get money, while having to pay out little if any money, imagine a business like that.
jc
Mark, I totally disagree with your arguments. The medical malpractice industry is totally incapable of dealing with incompetent doctors or compensating injured parties. Malpractice plaintiff attorneys LOSE 80% of the cases they file and they LOSE 95% of the cases that go to trial! So who should deal with incompetent doctors? State Medical Boards do that and do a pretty good job. You can go on State Board Medical web sites and you will see disciplinary actions. Just to show you how proactive and aggressive these Medical Boards can be, a friend of mine had a drinking problem. He was a good doc and never harmed a patient, and helped all he worked with. Well alcoholism is a disease and he checked himself into a rehab center and the Ohio State Medical board got proactively involved. After some unfortunate relapses the Medical Board suspended his license and he was forced into retirement. He never was sued for malpractice--simply the State Medical Board proactively doing their job. On the other hand, I have seen malpractice plaintiff attorneys persistently frivolously sue fine, outstanding physicians simply because they are in a high risk specialty. We need a total revamp of the medical malpractice system--lets get specialized medical courts!
Mark Bello
Dr. Cox: Consistently lying about malpractice statistics every time you comment is not helpful to public debate. As I have indicated several times, I oppose caps on damages because they punish seriously harmed victims and reward wrongdoers. The tort system and the prospect of financial harm resulting from bad behavior clearly helps make us safer. Reducing or eliminating the consequence of bad behavior allows that bad behavior to fester and grow. What is the benefit to a lawyer to "persistently sue" people who have done nothing wrong? If all of these so-called "frivolous" lawsuit are being dismissed or won by doctors and hospitals in the percentages you keep spouting, that means that the system itself is working to exonerate those who are victimized by bad lawyering, doesn't it?
What I advocate for is a system that fully and fairly compensates a victim of serious misconduct who have suffered a catastrophic outcome. Limiting damages by "capping" the recoveries of seriously injured victims does nothing to prevent the filing of valueless cases. Yet, you keep lumping these two situations together as if they are relevant to each other. Your "fox should guard the henhouse' solutions are self-serving and disingenuous, your constant distortions of statistics annoying and your crusade to limit recoveries completely contradict the arguments you make. If plaintiffs lose cases at the percentages you suggest, why would we need a cap on damages on the serious, leftover, high value cases? You want to win when you win and win when you lose, too. How are your arguments relevant to, for instance, the family in Michigan whose mother was the victim of wrong patient brain surgery? Why shouldn't the recovery be significant in that case? When serious negligence is committed causing serious injury, serious compensation should be awarded. When there is no negligence, the case should be dismissed. Assuming your statistics to be true, for just a second, it seems to me that the system is working-it is dismissing the frivolous and awarding the serious. You want it both ways, which makes you a tort reform hypocrite.
jc
Mark Bello: Consistently lying about malpractice statistics every time you comment is not helpful to public debate. I quote statistics reported to the Ohio Dept of Insurace at www.insurance.ohio.gov, for my statistics. This is the gold standard of med mal insurance statistics because they do not have an agenda like Mark Bello. In 2012 about 80% of the medical malpractice cases filed in Ohio were dropped with no payment! Of those that were decided in Court, 92.3% were decided for the doc. Mark Bello has never presented statistics and blog readers should consider this when they want to consider the credibility of arguments.
So why do plaintiff attorneys pursue 'frivolous' cases. Well, I just won a 10 year medical malpractice case because a patient did not get an aspirin. Before that I won a 6 year case because of a clerical error which had no effect on pt outcome. There are an abundance of hungry lawyers out there, some in poverty (eating out of garbage cans) and they will take anything. Their hope is to drag the case out ant try and extort $$$$ from the doc or his insurance carrier if they drag the case out long enough. In both my cases, the plaintiff attorney was asking for big $$$$ and I said "See you in Court" and the cases got dropped!
Now let's talk about Mark's Michigan Woman $21,000,000. This 81 year old woman died because of obvious malpractice. Yes, her family deserves something for this tragedy. But a woman's life expectancy in the USA is 81. So $8,000,000 goes to the lawyer and the family gets $13,000,000? I would sure like to be part of that family and go to that funeral! Are they going to put her in a solid gold casket? Who is Mark Bello really looking out for here--the patient or the plaintiff attorney?
Mark Bello
Dr. Cox: SERIOUSLY?! Your sarcastic and unfeeling comments about this woman and her and her family's tragedy tell the public all they need to know about you. This is the same type of arrogant, calloused, behavior that got the hospital in trouble with the jury. Shame on you.
Further, you consistently ignore SETTLEMENT statistics when you spout your percentages, and those quoted represent a single year's sample in one community. That skews your statistics. And, without considering those cases that resolve in plaintiff's favor (settled) without a trial, the percentages you like to quote are worthless. Of COURSE doctors are going to win the majority of the leftover cases; all the really good cases have been settled in favor of the plaintiffs! And, even according to you, plaintiffs still win a decent share of leftovers at trial.
At issue in this case is whether a dead woman's family will or should collect the full jury award against a grossly negligent and calloused defendant or whether tort reform will prevent full collection. This has NOTHING to do with frivolous lawsuit statistics. I'm sure there is a "punishment" component to this verdict, which is absolutely appropriate in these circumstances. You've told us all we need to know, and I quote you: "This 81 year old woman died because of obvious malpractice". After the "obvious malpractice", the hospital made things worse by trivializing the events and ridiculing the victim; you have done the same thing in your comments. I am positive that the hospital after-incident behavior contributed, appropriately, to the result.
Your comments tell the public more about your bias and hatred for lawyers and malpractice victims than they do about civil justice.
jc
Mark Bello: SERIOUSLY?! Your untruethfull comments about this unfortunate situation tell the public all they need to know about you! You have to know that a dead woman does not need $21,000,000 for nursing care, feeding, etc. So who gets that money? Well with a typical 40% contingency fee, her lawyer gets $8 million. That is who you are trying to protect, and it is shameful that you would hide your true intentions behind the grief and loss of this family.
This case classically describes why caps on pain and suffering are necessary. Assuming that the award did not include punitive damages, this award greatly exceeds all reasonable limits and it should be reduced to about $1 million. What happened is the jury was inflamed by the Defendants conduct and stuck them with a huge verdict. But who pays this verdict? $21 mil is big bucks and it means the hospital has to cut back. Usually that means that layoffs occurr, you know, the fourth floor gets shut down and innocent nurses lose their jobs. All to protect a plaintiff attorney's $ 8 million fee! Shame on you Mark!
As for the Ohio Insurance Statistics, Mark, I. Am sorry this independent study does not agree with your propaganda. 2,773 cases were resolved in 2012 in Ohio and all malpractice carriers are legally required to submit their results to the Ohio Dept of Insurance. So if a settlement is made or a case is dropped or there is a verdict, it all gets reported to the Ohio Dept of Insurance. So Mark you are lying when you say SETTLEMENT statistics are not included in this report. If you want, you can look at several previous years in this report. I stand by my numbers 80% of cases get dropped and 92.3% of verdicts are defense verdicts. By the way, Mark, where are your statistics?
Mark Bello
It really bothers you that a lawyer makes money exposing a bad doctor? How much did the lawyer who lost your case make? When you win, you make money, when you lose, you don't. What's atrocious is that the doctor who did brain surgery on the wrong person, got paid a lot of money for the surgery. When a plaintiff's lawyer botches a case, he gets no fee. Sounds right to me...
jc
Mark, it doesn't bother me when attorneys make money trying and winning a legitimate case. What bothers me is when plaintiff attorneys, like you, piously lecture us about the value of the 7th Amendment and how injured patients should get the entire award, when what you are really doing is justifying an outrageous contingency fee of $8 million for week of work in court. Instead of the pony express medical legal system we now have (10 years of litigation because a patient didn't get an aspirin?) that appears to be built to take care of lawyers, why can't another system be devised. You know, if a patient suffers a $50,000 injury from malpractice he probably cannot get his case heard in court because of the over the top legal expenses involved in malpractice litigation. (Costs a plaintiff attorney $100,000 to take a case to court!).
Mark Bello
And how much money did the lawyer who lost after 10 years of litigation over failure to get an aspirin make on the case? A "week of work in court" is not a realistic depiction of an attorney's work on a malpractice case, and you know it. These cases take years to resolve, require hours and hours of hard legal work and significant out-of-pocket expense, mainly because of doctors' and hospitals' refusal to acknowledge mistakes, apologize for them, and offer reasonable compensation in the early stages of a case. Most large verdicts result because of hospital and doctor behavior AFTER the original mistake. Like Watergate, the cover-up is often worse than the crime.
Why does it cost a plaintiff attorney $100,000 to handle a malpractice case? Because doctors and hospital contest legitimate cases until the end of time and insurance company lawyers make boatloads of money helping them do it. Their intent is to wear the plaintiff and their attorney down and/or cause them financial woe. Why doesn't THAT bother you? And if the doctor is guilty of serious misconduct, why does it bother you so much that he gets hammered with a large verdict? It is what he deserves. I've conceded, over and over, that there should be no place in the legal system for the filing of so-called "frivolous cases", but you won't concede that a seriously harmed victim should get whatever the jury awards. That makes you a "tort reform hypocrite".
jc
Mark, in 2008 my aspirin case resulted in a unanimous jury verdict in my favor. The plaintiff attorney admitted just before the verdict was read that he spent $110,000 on the case. That verdict should not have been a surprise to him. He was at every deposition, even the one where his expert agreed with me about the course of this patients disease and outcome. He had to know this case did not involve medical malpractice, ---just an unfortunate patient with a terrible, incurable disease with a tragic outcome. Yet after the verdict, the plaintiff attorney pursued appeals all the way up to the Ohio Supreme Court on a legal technicality. So how did he spend his time after winning a re-trial? He constantly called up my attorney begging him to settle the case! After trying to isolate me and put pressure on me to get me to settle, he finally came to the conclusion that I wasn't going to settle and he dropped the case on the court house steps! So why no sanctions on this plaintiff attorney?
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