While it may be hard to believe, not all “tort reform” trends in legislative chambers are in one direction. There are several laws being proposed which actually seek to expand rights for those affected by negligence and misconduct, including medical malpractice. Take, for example, the ongoing political fight out west in California on the state’s cap on non-economic damages. A recent LA Times editorial makes a strong case for providing more flexibility in these matters
California was one of the earlier state to place arbitrary limits on what those hurt by medical malpractice could receive, regardless of the extent of their injuries. Nearly four decades ago the state legislature first limited damage awards in its Medical Injury Compensation Reform Act. The law provided that the maximum amount that a patient or their family could receive for non-economic damages (like pain and suffering) was $250,000. This is true now matter how heinous the injury, reckless the error, or what an actual jury thought appropriate it any given case.
This cap has never been adjusted for inflation and remains at that same amount today. Many are pushing for that to change.
California has a robust ballot system that allows voters to push measures on their own via statewide referendum (Illinois does not have a similar system). Recently millions of advocates across the state have begun a campaign to use the ballot box to roll back the incredibly restrictive caps in these cases.
Organizers of the effort are still working to qualify for the referendum to make it to voters; it requires acquiring a large number of signatures. If it does make it, voters in the state will be given the opportunity to raise the cap from $250,000 to $1 million.
Fairness for Med Mal Victims
The LA Times editorial makes several level-headed points which explain how these caps are illogical and ineffective. For example, the author notes that the caps only target one specific type of injury victim–medical patients. One who suffers a serious brain injury as a result of a surgical error would face the cap. Another who suffers the same injury as a result of a negligent driver would have no limit. Why would this inequity exist?
The inequality also has a demographic component. The editorial mentions a 2004 study which found that, as a result of the caps, women children, and the elderly were far more likely to be affected. In other words, the caps exacerbate the existing inequities in injury awards. The reason is that non-economic damage awards are far more likely to be granted to those whose ‘economic” damages are lower. Adult men are more likely to have higher paying jobs and other life situations which can be calculated as an economic loss. Stay-at-home mothers, retired persons, and children do not have those jobs, as so their economic damages are lower. The arbitrary cap, therefore, essentially means that their awards–for the exact same injury–are generally much lower than those given to men.
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