Articles Posted in Malpractice Caps

Often it is difficult to put malpractice caps into perspective in the abstract-personal stories of grievous loss caused by medical errors are apt.

The Los Angeles Times shares the story of a 17-year old girl who had corrective heart surgery shortly before going to college. The procedure would only take a few hours and the girl had gone through the same operation several times in the past. The teen was supposed to be back home for dinner that night.

However, a few hours later the girl’s mother was told that an “incident” had occurred during the operation, depriving the victim of oxygen. The girl was placed on a breathing tube, but she would never recover. A week later her parents were forced to make the excruciating decision of removing her from the ventilator and taking out an internal breathing tube. The girl died shortly after.

The family pressed the hospital for more answers to better understand what happened to their daughter. However, the hospital provided little more than general, inconclusive explanations. The family was forced to sift through confusing medical records on their own in an attempt to put the pieces together. The grieving mother explained that the process made her realize the difficulty faced by families of malpractice victims.

She admitted, “I could imagine this happening over and over again because families don’t have the resources to find out how their loved one passed away. We had to claw our way through the system.”

The family decided to sue the hospital so that they could actually learn more about what happened. They initially had trouble finding legal representation because of the state cap on malpractice damages. However, one law firm took the case and filed suit. Eventually, it was discovered that the postdoctoral fellow had removed the young girl’s catheters without doctor supervision with the assistance of another fellow who hadn’t even been cleared to see patients.

Because of the cap on damages, the attorneys were forced to urge the Cull’s to settle the case for $250,000-the maximum allowed under the law. The trial process was cut short. The family plans to use the funds to start a scholarship fund in their daughter’s name. However, the first-hand experience has led them to understand how the threat of a larger settlement might have forced the hospital to have been more forthright about what happened.
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Today members of the U.S. House Judicial Committee met to discuss issue related to medical liability and malpractice lawsuits. The hearing involved discussion of patients rights as well as repeated, misguided claims about the need to take away certain legal decisions from juries.

Many member of Congress stood tall in their support for the preservation of patient rights. For example, Representative Nadler made clear that all discussion of malpractice had to focus on the fact that 98,000 patients die each year because of preventable medical mistakes. Advocates for victims also explained that the claims regarding rising healthcare costs is not related to the judgments in malpractice cases.

The reality is that researchers consistently find that malpractice lawsuits and the proposed “reforms” would have little if any effect on healthcare costs. The vast majority of expenses in litigation are related to claims of merit.
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Last week Courthouse News Service wrote about a recent state appeals court that reached the same conclusion as the Illinois Supreme Court: medical malpractice damage caps are unconstitutional infringement into the judicial process.

The court made the ruling after an appeal by a family whose young daughter suffered debilitating injuries because of the negligent of a nurse. The young girl developed a rare childhood-cancer that was not diagnosed in time to prevent severe injury-even though the girl made 32 separate visits to a nursing clinic prior to the diagnosis. The nurse practitioner who ran the clinic failed to diagnose the young child with the cancer, known as neuroblastoma. It was eventually revealed that the nurse never received a bachelor’s degree or master’s degree as required to become a nurse practitioner. Her highest degree was a high school diploma.

The family of the victim, who is now legally blind with a misshaped skull, filed a malpractice lawsuit against the negligent nurse. The family won their claim and a jury from their community awarded them $6.2 million for the lifelong care that will be needed because of the medical error. However, the caps in the state arbitrarily shrunk the award to a one-time payment that was 12 times smaller than that which her jury deemed appropriate.

The appeals court ultimately rejected the cap as an unjustified discrimination against certain victims of negligence. The caps apply only to some victims and not others. As one of the Judges wrote, “the state offered no evidence in this case…to refute the fact that the cap discriminates against [the victim] by limiting their general damage recovery…while allowing other less severely injured victims to fully recover.”
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The need for “tort reform” continues to be a common refrain among certain political elites, but the reality is that the claim is nothing more than a misunderstood attempt to take away rights from many innocent victims.

The Center for Justice and Democracy recently prepared a historical primer on the right to jury trial doctrine that so-called “reformers” are hoping to eliminate. The document outlines the fact that the right to a jury trial was repeatedly emphasized as one of the most important rights to early Americans. As far back as 1641, Massachusetts colonists enacted a charter that explicitly provided for civil and criminal jury trials. The importance of the explicit reference to the right cannot be understated-even vital protections like free speech and free press provisions had yet to be mentioned at this point in history.

Later as tensions rose between England and the colonists, the British leadership attempted to restrict the right to jury trials for Americans. The Stamp Act, one of the main impetuses of the Revolutionary Way, riled our Founding Fathers in large part because its enforcement was made by judges alone. John Adams remarked, “[T]he most grievous innovation of all is the alarming extensions of the power of the admiralty…no juries have any concern there.”

Following the war, the new states themselves repeatedly drafted constitutions that included a civil jury trial. For example the Virginia model declared, “In controversies respecting property and in suits between man and man, the parties have a right to trial by jury, which ought to be held sacred.”
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All of the hotly contested political races and heated campaigns culminated yesterday as Illinoisans throughout the state went to the polls to help select leaders at the local, state, and federal levels.

One race of particular importance for those who care about the rights of medical victims and the preservation of an impartial justice system involved the retention of Illinois Supreme Court Justice Thomas Kilbride. We had previously posted on the unfair smear campaign being waged against the judge by a few special interest groups seeking to cut-off many patients’ access to justice following medical mistakes.

Millions of dollars were poured into the smear campaign the past few months in an attempt to depict Justice Kilbride as a shill for violent criminals, including rapists and murders. The extreme distortion in the ads provoked a clear backlash among judges, lawyers, legal thinkers, police officers, and all moderate thinking citizens concerned with the truth and fairness.

Illinois Supreme Court Justice Thomas Kilbride has been under fire lately for a vote that he cast in a recent high profile state case. The decision revolved around a challenge to the 2005 state law that placed a cap on the amount of damages that could be received by a victim of medical malpractice.

Justice Kilbride, soon to be the high court’s next Chief Justice, voted earlier this year to invalidate the law as violating the state constitution’s demand of separation of powers. In addition, there was precedential support for the ruling, consider a similar ban had been rejected a few decades before.

In a recent interview with the Peoria Journal Star the justice highlighted the logic behind the decision. He explained that the court did not make the ruling based on personal policy arguments for or against health care premiums and patient need. Instead, as is the specific job of our judges, Kilbride considered the law only in its constitutional dimension

All those interested in keeping abreast of developments in the areas of patients’ legal rights and medical malpractice now have even more options. The Center for Justice and Democracy announced early last week on the release of two new publications in the area. The consumer groups is hoping that the publications will provide even more clear insight demonstrating the challenges of the proposals that some states are considering which would further deny certain victims access to the full justice system.

First, The Circuit published an article explaining that the claimed alternatives to the regular justice system-like health courts, apology and early offer laws, certificates of merit, and others-are often fatally flawed. The author notes, “Rather than changing patients’ legal rights, the focus should be on increased safety as the best way to decrease the need for litigation.”

Second, the Center released An Analysis of HHS Patient Safety and Medical Liability Initiative which critiqued an experimental program out of New York. That program will force many OB/GYN patients into biased legal apparatus with fewer legal options and no notice that they will be forced to concede their rights upon entering the hospital.

The Texas Tribune is reporting on an unfolding legal story that highlights the unique ways in which hospitals make errors and puts the unfairness of medical malpractice caps in a new light.

The situation arose following an event that occurred at St. Luke’s Episcopal Hospital several years ago. Irving Marks was at the facility to have back surgery performed and to recuperate following the procedure. The actual back operation went forward without a hitch. However, while lying in bed following the procedure, Marks suffered a terrible fall in his hospital room. It was eventually discovered that the fall was caused by a broken footboard on the bed to which he was assigned.

A lawsuit was filed so that the negligent hospital would assist Marks with his medical payments following his re-injury after the hospital fall. Interestingly, the hospital argued that the lawsuit was limited by the medical malpractice law which puts a cap on certain damages at $250,000. Marks attorneys conversely suggested that the law did not apply, because the faulty bed problem was distinct from the medical errors that supposedly fall under the cap.

Representative Michael Burgess, the Republican chairman of the Congressional Healthcare Caucus admitted to The Hill this week that attempting to limit medical malpractice awards for victims will not save the nation much on healthcare costs. This is an important concession from an advocate that has previously called for new laws which would infringe of the rights of patients who suffer at the hands of medical mistakes.

Rep. Burgess explained that, “I have never suggested that medical liability reform is a silver bullet.”

The comments were spurred by a new study which documented costs associated with handling the malpractice that doctors commit. The researchers behind the study were clear in explaining that attempting to lower the costs to doctors from malpractice liability would do little to solve the country’s overall healthcare expense problem.

The Washington Post is reporting that a jury has awarded the family of a medical malpractice victim nearly $3 million. The victim was a man who died after his esophagus tore while he was swallowing a piece of steak. The medical malpractice jury found that the radiologist was liable for misdiagnosing the man’s condition as a hiatal hernia. The state’s medical malpractice cap will require the jury’s award of $2,933,500 to be cut by more than half. This puts the ending jury verdict at $1.25 million. The anesthesiology group also agreed to pay a settlement of $600,000.

The victim had entered the hospital complaining of chest pains and trouble swallowing after he had eaten the steak. When he entered the hospital he stated that the piece of meat went down the wrong way. In reality, the piece of meat had gotten stuck in this throat. At the hospital he was given a number of tests which included an EKG, an X-Ray and a CT scan. The computer stated that the victim had a “large hiatal hernia” and doctors treated him with oral medicine. However, his pain did not decrease. Doctors continued to try to diagnose his chest pain. Finally, after a day of searching a surgeon found the victim’s perforated esophagus. He was immediately prepared for surgery and an epidural catheter was inserted. Court documents show that after the catheter was inserted the victim went into cardiac arrest. He had been severely weakened by the perforated esophagus which caused his cardiac arrest. The man died less than two weeks after his surgery.

This case highlights two aspects of medical malpractice law. First, it is yet another example of the 98,000 people who die annually as a result of medical malpractice. Second, it shows that medical malpractice caps are quite misleading. The jury was never told about the state legislation and hoped that the victim’s family would be justly awarded nearly $3 million in compensatory damages. However, the family was impacted by an unconstitutional state malpractice law. To read more about this specific case, please click the link.

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