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Notes From the Tort Reform Front, Part III

There seems to be a presumption among tort reformers that pain and suffering damages are not real. The President’s tort reform proposal permits recovery of all economic damages but limits non-economic damages to $250,000. Some seem to believe that that proposal would provide a fair recovery for injured persons.

In many cases, that view would be correct. President Bush recently went to Madison County, Illinois to promote tort reform. Madison County has been named:

the country’s top “judicial hellhole” by the American Tort Reform Association last year because of its reputation for big awards.

Surely, Madison County would show the benefits of the President’s tort reform proposal, right? Maybe not.

According to Public Citizen:

There has been only one medical malpractice lawsuit in Madison County that produced a verdict in the last seven years that would have been affected by President Bush's proposed $250,000 cap on non-economic damages.

If the President’s damage cap will affect only one case every seven years in the nation’s number one “judicial hellhole,” it is hard to see how the damage cap will lower insurance premiums or health care costs generally. The President’s proposal will provide a fair recovery to many injured persons only because it will have no effect on the vast majority of recoveries.

The damage cap does create injustice in some cases. For instance, a New Fairfied, Connecticut woman was recently awarded $500,000 in damages against a doctor who sterilized her without her consent.

MaryAnn Daly went in for an emergency Cesarean section. While performing the procedure her doctor also performed a tubal ligation. The jury found that the doctor did not obtain his patient’s consent before sterilizing her.

Under the President’s proposal, what damages would be available to Ms. Daly? The tubal ligation would not prevent her from earning money so she would receive nothing for past or future lost wages. The tubal ligation would not cause any future medical procedures so she would receive no award for medical expenses. Her economic damages would be approximately zero. Under the President’s proposal, her recovery would be limited to a maximum of $250,000.

Does that seem fair? The jury, who surely knows more about MaryAnn Daly's damages than you, me, or the President, found that she had been damaged in the amount of $500,000. Is it fair to cut that award in half?

Several years ago in the Atlanta area, a doctor misused a laser while circumcising a newborn. He burned off the baby’s penis. The doctors performed another surgery to make the infant cosmetically a female. Once again, the baby would have a hard time proving much in the way of economic damages. Once again, $250,000 does not seem like adequate compensation for the injury.

Or consider the hypothetical of a 65 year-old man who after 40 years of work decides to retire to spend more time with his wife, children, and grandchildren.

If a doctor mis-prescribes medication that kills the man, there would be little or no economic damages. His retirement would reduce his lost earnings to nearly zero and his death would cut off any future medical treatment. The economic damages could easily be the cost of the funeral.

A damages cap of $250,000 for the death of a relatively young man who does not get to spend a decade or two watching his grand kids grow up does not seem fair to me. Does it to you?

President Bush’s proposal of a $250,000 cap on non-economic damages will do little to reduce malpractice insurance premiums or health care costs. Since frivolous suits rarely succeed, it will do little or nothing to reduce the volume of litigation. It is hard to see how the benefits of the proposal outweigh the costs.

Posted by Dwight Meredith at January 22, 2005 04:21 PM | TrackBack