A tale of two different types of malpractice victims. An unpublicized effect of caps on noneconomic damages (pain and suffering).
The following excerpts are from an article in Friday's Wall Street Journal (as usual, I will email the article upon request, but cannot post it since the wsj online is a subscription service):
Amid the fierce debate over limits on medical-malpractice suits, many states have enacted limits of their own that are having a sweeping impact. One of the most common types -- caps on damages for pain and suffering, or so-called noneconomic caps -- is turning out to have the unpublicized effect of creating two tiers of malpractice victims.
Cases involving high earners or big medical bills move ahead. Lawyers can still seek economic damages for the wages these patients lost or to pay for continuing medical bills. But lawyers are turning away cases involving victims that don't represent big economic losses -- most notably retired people, children and housewives.
Vice President Dick Cheney mentioned the Bush administration's wish to enact nationwide caps on noneconomic damages in his debate this week with John Edwards, the Democratic vice-presidential nominee and a former plaintiffs' lawyer himself. But groups such as AARP, the organization for older Americans, and the National Organization for Women are mounting campaigns against such moves. "When you put a cap on noneconomic damages," says NOW President Kim Gandy, "quite literally [women's] lives are valued lower."
During [a trial involving an unmarried woman on welfare with two minor children who died, a doctor and lawyer who handles only medical-malpractice cases] argued: "We are saying to doctors and hospitals it's OK to kill somebody who comes from a poor family because ultimately they aren't going to have the same effect on our medical-malpractice insurance as somebody who comes from a rich family."
The presiding judge . . . agreed that the cap on noneconomic damages can be inequitable based on a person's socioeconomic standing. "You're absolutely right," she said, according to a trial transcript.
The American Medical Association, a supporter of tort reform, acknowledges that some plaintiffs with little in the way of economic damages have a hard time finding lawyers. "If their claim is not of high monetary value, then it's hard for them to find an attorney," says Dr. Donald J. Palmisano, immediate past president of the AMA.
For plaintiffs' attorneys, the primary question in cases involving babies and others without income is whether medical needs are continuing. That boosts a potential award because it wouldn't be limited by the cap on noneconomic damages. The question proved crucial for Brenda Stoltz, of Leesburg, Va. Ms. Stoltz says a botched delivery last year left her daughter, Zoe Elizabeth, severely brain damaged.
Last September, Ms. Stoltz and her husband decided to sue the doctor involved and they retained a Maryland law firm that specializes in medical malpractice. Zoe was facing a lifetime of expensive medical care.
But on Oct. 21, Zoe died. Ms. Stoltz says she told the lawyers of her baby's death the next day. Shortly after that, the firm dropped the case. A lawyer for the firm wouldn't comment.
Amid the fierce debate over limits on medical-malpractice suits, many states have enacted limits of their own that are having a sweeping impact. One of the most common types -- caps on damages for pain and suffering, or so-called noneconomic caps -- is turning out to have the unpublicized effect of creating two tiers of malpractice victims.
Cases involving high earners or big medical bills move ahead. Lawyers can still seek economic damages for the wages these patients lost or to pay for continuing medical bills. But lawyers are turning away cases involving victims that don't represent big economic losses -- most notably retired people, children and housewives.
Vice President Dick Cheney mentioned the Bush administration's wish to enact nationwide caps on noneconomic damages in his debate this week with John Edwards, the Democratic vice-presidential nominee and a former plaintiffs' lawyer himself. But groups such as AARP, the organization for older Americans, and the National Organization for Women are mounting campaigns against such moves. "When you put a cap on noneconomic damages," says NOW President Kim Gandy, "quite literally [women's] lives are valued lower."
During [a trial involving an unmarried woman on welfare with two minor children who died, a doctor and lawyer who handles only medical-malpractice cases] argued: "We are saying to doctors and hospitals it's OK to kill somebody who comes from a poor family because ultimately they aren't going to have the same effect on our medical-malpractice insurance as somebody who comes from a rich family."
The presiding judge . . . agreed that the cap on noneconomic damages can be inequitable based on a person's socioeconomic standing. "You're absolutely right," she said, according to a trial transcript.
The American Medical Association, a supporter of tort reform, acknowledges that some plaintiffs with little in the way of economic damages have a hard time finding lawyers. "If their claim is not of high monetary value, then it's hard for them to find an attorney," says Dr. Donald J. Palmisano, immediate past president of the AMA.
For plaintiffs' attorneys, the primary question in cases involving babies and others without income is whether medical needs are continuing. That boosts a potential award because it wouldn't be limited by the cap on noneconomic damages. The question proved crucial for Brenda Stoltz, of Leesburg, Va. Ms. Stoltz says a botched delivery last year left her daughter, Zoe Elizabeth, severely brain damaged.
Last September, Ms. Stoltz and her husband decided to sue the doctor involved and they retained a Maryland law firm that specializes in medical malpractice. Zoe was facing a lifetime of expensive medical care.
But on Oct. 21, Zoe died. Ms. Stoltz says she told the lawyers of her baby's death the next day. Shortly after that, the firm dropped the case. A lawyer for the firm wouldn't comment.
posted by Sid Cottingham | 12:53 PM
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