Being a victim of medical malpractice is devastating. Whether you are dealing with personal injuries to yourself or the wrongful death of a loved one, knowing that the harm was caused by a doctor or other medical professional you deeply trusted makes the situation even more difficult. In states like Illinois we have a civil justice system in place that allows you to be compensated for the injuries you have suffered. Unfortunately, victims in states like South Dakota are finding that the have no recourse against those who have injured them, and it is all because of what is popularly called “tort reform.”
Woman’s Story of Injury Without Recourse
The Rapid City Journal recently reported on the case of a woman named Jennifer Eastman. Eastman had to suffer through the horrible experience of having a wanted pregnancy end in fetal death and a trip to the hospital to have the deceased fetus removed from her womb. Unfortunately, that was not the end of her pain. When she was in the recovery room after the procedure she realized something was wrong. She later learned that the doctor who had removed her fetus had perforated her uterus and she was bleeding to death in the recovery room. A second doctor who examined her missed this serious complication.
It took a nurse finally noticing something was wrong for Eastman to be rushed back into the operating room. Her uterus had to be removed, forever crushing her dream of having a large family. On these facts, it seems like Eastman should have had no trouble seeking compensation in court. But because of South Dakota’s draconian damage caps, no lawyer could afford to take her case.
This is because back in 1976 the South Dakota legislature capped noneconomic damages in medical malpractice cases at $500,000. While that may have been a reasonable amount at that time, the number has stayed the same for nearly forty years with no increase for inflation. If you were alive in 1976 think about how much gasoline cost then versus now to realize what the lack of an inflation provision means for this outdated cap.
The Costs of Bringing Medical Malpractice Cases are Huge
While legislatures have capped the possible damage awards in cases like Eastmans, they certainly have not capped the costs of such litigation. As explained in a report by the Argus Leader, lawyers usually take these cases on a contingency basis which means that they front the costs of the litigation. This is necessary given that many of the people suing over medical malpractice have had their finances devastated by medical bills.
This contingency basis also means that the lawyers only get reimbursed for the costs of the litigation (let alone make any profit) if there is an award or settlement and the insurance companies do not take every dime of the recovery. Since attorneys cannot afford this risk with such a small potential reward, they often cannot take on cases like Eastman’s no matter how strong the case. This shows that while “tort reformers’ claim that they are fighting frivolous law suits, those who are really affected by tort reform are those who have been the most seriously injured.
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