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Potential Legislation in Medical Malpractice Law to Place Cap of $250,000 on Non-Economic Damages

Tort reform: Who can possibly be against reining in those avaricious lawyers? We’ll get back to that question in a bit. Right now, a bill is making its way through Congress, H.R. 1215. If it ultimately becomes law it will radically change medical malpractice law throughout the country. There are many provisions to it, but what sticks out as the most noteworthy is a cap of $250,000 on non-economic damages.

My general view of management, leadership and dealing with others can be encapsulated with two basic premises. One comes from religion and the other from the medical profession. In some form or another, most religions have what we call the Golden Rule: Treat others as you would want to be treated. That is rule number one. It’s easier said than done as often we have to make very difficult decisions – decisions that are adverse to those we work with. Rule number two comes from the doctors. The Hippocratic Oath essentially starts with an impressive directive: First, do no harm. In other words, don’t make things worse.

As far as I am concerned, H.R. 1215 fails on both of the above points. I will take it in reverse order. What problem would Congress being trying to fix? For over 10 years now the number of malpractice cases has fallen. The rates for malpractice insurance are relatively flat or declining. Is there any evidence that patients are being denied care because of malpractice concerns? If so, no one seems to be trumpeting that fact. If there is no crisis – and there does not appear to be one – does the Federal government superseding the law of virtually every state actually help anyone or solve some problem? Civil litigation, including negligence cases, have been the purview of the individual states since before we were even a country. States can and do tweak their malpractice laws all the time. Some are much more restrictive than others. I may disagree with how some states treat these cases – and I truly do – but as I see it, that is the state’s call, not the feds. So, right at the start my view of this can be summed up by the old Southern adage: If it ain’t broke, don’t fix it. That’s just another way of saying “first, do no harm.”

There are a bunch of provisions to this legislation, many of which deal with fairly technical legal issues, but the big one is the non-economic damage cap of $250,000. The cap fails the first test. We’re not treating others as we would want to be treated ourselves. Let me explain why I feel this way. We handle FTCA medical malpractice cases all over the country. Because the FTCA utilizes the substantive state law of the jurisdiction where a claim arises, we are very familiar with how a $250,000 cap works in places like California and Texas. Many of our veteran clients are older so there is not necessarily lost income or even medical expenses, but they have often suffered significant life impairing injuries. What is it worth to not be able to play with your grandchildren or travel with your spouse of many years? Does constant pain or numbness have a value? The problem with a $250,000 cap is that it makes such claims economically impossible to pursue. 

Malpractice cases are expensive. Even in cases settled early on, we often will have $25,000 to $35,000 in cost advances, litigation expenses – not legal fees. If a case even gets close to trial, the total figure can be triple that or more. Throw in even the modest fees allowed under the FTCA (no more than 25% for cases in litigation), and a client might net relatively little even if the case is resolved for the full cap. And litigation being what it is, it is no small matter to get the full cap. That’s a total win and the other side rarely compromises by giving up everything. 

I could come up with many examples, but what comes to mind is a case from a couple of years ago. Malpractice at a VA facility left a veteran in his late 60’s with a gimpy and barely functional leg – and that leg also had a festering sore that he would have to deal with the rest of his life. If that case had arisen in a jurisdiction with a $250,000 non-economic cap, he would have just been out of luck, even though the negligence was clear. We probably wouldn’t have taken the case and, even if we had been willing to do so, the amount the client might take away probably would not have helped him very much. If a low cap like this becomes the law of the land, thousands of patients will just be out of luck – especially many of the veterans we represent.

I will not pretend that our legal system is perfect and it is certainly not always fair. Maybe a non-economic cap is a reasonable restriction, but $250,000 is far too low and, regardless, that should be a state call. If the people of a state think it is necessary that’s their choice – through elected legislature. 

With this we come back to my initial question: Who can be against doing something about those greedy lawyers? The reality is that we lawyers would be hurt by this sort of legislation, both plaintiffs’ lawyers and those defending cases, but the other reality is that most of us will find other things to do. The patients who are left with no recourse for their injuries would be the big losers here, hugely so.  


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