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How Medical Malpractice Damage Caps Are Hurting Patients

August 05, 2014

Medical malpractice laws are designed to hold negligent doctors and hospitals accountable for the injuries and deaths that they cause by making them pay for the economic and noneconomic damages that their negligence caused. If a plaintiff is successful in establishing liability for medical negligence, he or she may be entitled to recover money damages for the following: medical expenses, lost wages, disfigurement, disability, loss of normal life, loss of companionship, pain and suffering, and emotional distress.

Unfortunately, many states have adopted laws that limit the amount of noneconomic damages – such as pain and suffering, emotional distress, and loss of companionship –that a plaintiff can receive in a medical malpractice lawsuit. In fact, the Milwaukee Journal-Sentinel recently ran a story highlighting the way that medical malpractice damage caps harm patients. In 2011, Ascaris Mayo, a 53-year-old mother of four, had her limbs amputated after an undetected Strep A infection lead to septic shock, causing damage that led to the amputations.

In July 2014, a jury awarded Mayo and her husband $25.3 million finding that the amputations were the result of medical malpractice, but because $15 million of the award was for pain and suffering and $1.5 million for her husband’s loss of companionship, the award will likely be reduced due to Wisconsin’s damage cap laws that limit noneconomic damages (such as those awarded to the plaintiff) to $750,000. (The jury award also included more than $8.2 million in past and anticipated health care costs, which are not subject to the state caps.)

Not only does this case highlight the unjust consequences of medical malpractice damage caps, but it also brings to light the problem with lax informed consent laws. The jury found that Dr. Wyatt Jaffe and the physician’s assistant, Donald Gibson, had violated informed consent obligations by failing to provide Mayo with “alternative medical diagnoses” that would have led her to pursue other treatment.

According to the Journal-Sentinel, the case hinged on an informed consent law that was relaxed to favor physicians last year. Under the new law, the bar for what a doctor must tell a patient regarding medical treatment was lowered and, had the new law been in affect at the time Mayo was treated, she may not have even won her medical malpractice case – despite the fact that her loss of limbs were the direct result of the defendants’ failure to inform her of possible diagnoses for her condition.

Although Illinois currently does not have medical malpractice damage caps, several states do. In fact, Wisconsin is one of about 35 states with damage caps. For instance, California and Colorado limit noneconomic damages in medical malpractice cases at $250,000 and Texas caps noneconomic damages at $250,000 from each physician involved in the medical malpractice case, with a $250,000 cap against any single institution and a $500,000 cap on all health-care institutions combined.

In addition to Wisconsin’s $750,000 cap on noneconomic damages in medical malpractice cases, the state also caps noneconomic damages in any wrongful death case at $500,000 and bans punitive damages in medical malpractice cases, which means that in the most devastating medical malpractice cases – those in which a patient dies – the plaintiff is left without adequate financial recovery options and the defendants may not be held fully accountable.

Wisconsin’s cap on malpractice damages is even lower if the doctor is employed by the state, which includes the more than 1,350 doctors who are employed at Madison’s University of Wisconsin Hospital and Clinics or associated facilities. For UW doctors, the cap on damages is only $250,000 per defendant, regardless of whether the doctor’s negligence results in a lifetime injury that could require millions of dollars of future treatment.

Not only do damage cap laws prevent adequate financial recovery for plaintiffs, but the laws are also rather illogical. For instance, as pointed out in another Journal-Sentinel article, if a doctor paralyzes or kills someone in a drunk driving accident, the damage caps do not apply; but if the same doctor paralyzes or kills someone due to medical negligence, the damages would be capped.

Myths and Lies about Tort Reform

Proponents of damage caps and tort reform would like patients and the public to believe that the caps are necessary in order to reduce healthcare spending, but studies indicate that tort reform actually has no impact on healthcare spending. For instance, a 2012 study compared Medicare spending in Texas before tort reform with Medicare spending after damage caps were imposed, and found little difference in healthcare spending under the two regimes.

Moreover, although the doctors and healthcare providers say that insurance premiums are increasing because of medical malpractice lawsuits, in reality, insurance premiums are increasing because of insurance companies’ desire to general profits and representatives from the insurance industry have said that tort reform would not reduce the insurance premiums that they charge policyholders.

Contact a Medical Malpractice Lawyer

The medical malpractice lawyers at Cogan & Power, P.C. are dedicated to helping the victims of medical malpractice obtain the maximum money damages possible, including economic and noneconomic damages. We have significant experience representing the clients in and around Chicago who were the victims of medical negligence and, as a result of our knowledge and experience, we have obtained numerous multi-million dollar verdicts and settlements on behalf of the victims of medical malpractice, including an $11.4 million settlement for a man whose cervical cord was injured when his head fell from the head-holder during surgery, a nearly $10 million verdict for a medical student who suffers from complex regional pain syndrome, and a $7.650 million verdict in a birth injury case in which a baby suffered from cerebral palsy caused by obstetrical negligence.

Contact our office today at (312) 477-2500 to schedule a free consultation with one of our Chicago medical malpractice lawyers.

If you have been injured in a personal injury or medical malpractice accident, do not hesitate to contact the Chicago accident and injury law firm of Cogan & Power at (312) 477-2500 to schedule a free case consultation, so that we can help you begin the process of recovery as soon as possible. If you cannot come to our offices in downtown Chicago, we will come to you. And because we take cases on a contingency basis, you will not pay any fee unless we get you compensation.