So often ignored in the debate about “tort reform” laws are the collateral consequences of shifting the responsibility for medical malpractice away from those who actually made the error. Our Chicago medical malpractice attorneys frequently explain the scope of losses sustained by those hurt by preventable medical errors. The financial, physical, mental, and social toll is far higher than many community members expect. It should not be a controversial opinion that the ones who caused the loss (and their insurers) provide redress in those situations.
Yet, tort reform laws essentially seek to shield those responsible parties for their conduct.
In states where many of these laws have passed, what are the consequences? The costs of these errors are shifted to taxpayers and the victims themselves.
For example, a recent article at NM Politics explored how arbitrary damage caps ignore the reality that medical mistakes occur far more frequently than they should and that those who make the errors should pay for them. In that state, laws limit the amount of money that a patient can recover for their losses. This is true no matter what the situation, how damaging the loss, or what a jury decides is reasonable after hearing all of the specific details of a case.
As we have repeatedly noted, these laws are a big win for medical interests and insurance companies, because it essentially limits what they will have to pay not matter how terrible or costly the error.
On the other hand this is most certainly not a big win for individual patients or taxpayers as a whole, because it usually means that the costs of the errors are shifted to them.
This is perhaps best illustrated when looking at cases of medical errors made during childbirth. The consequences of these mistakes are truly staggering, because they alter a life permanently just at the moment when the life is beginning. Each Chicago medical malpractice lawyer at our firm has worked with families whose children have suffered any number of injuries as the result of unreasonable conduct by medical professionals, from cerebral palsy to brachial plexus injuries.
Many of these injuries are permanently debilitating. Children born with severe cerebral palsy, for example, usually need a lifetime of around-the-clock care, special equipment, and more. The costs of this lifetime of care are obviously large. So who should pay for it? As the author of this commentary noted, in most states with arbitrary damage limits, the caps apply to future medical expenses and future care costs.
Functionally that means that the costs are shifted to the taxpayer, because the vast majority of families have no way of paying the extra costs on their own. The family involved is usually forced to spend virtually every last dime that they have before qualifying for Medicaid. The program then pays for the bare bones care that the child needs. At a time when Medicaid cuts are being made across the county-including Illinois-it seems entirely illogical to pass laws that push even more care into that system instead of forcing those who made the error and are capable if paying for it to do so.
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