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The Misguided Thinking Behind "Tort Reform"

Posted by Scott M. Peterson | Mar 16, 2017 | 0 Comments

Last week, the United States House of Representatives passed several measures that could collectively be described as “tort reform.”  These include limitations on class actions, sanctions for “frivolous” lawsuits and caps on damages in medical malpractice lawsuits. 

It might be easy to get on board with these measures if you don't scratch too far below the surface.  We understand why – plaintiff's lawyers can get a bad rap.  Rampant advertising and TV caricatures don't help.  And in the age of social media, the sillier lawsuits can get a lot of coverage.

But that doesn't change the fact that lawsuits help effect change and are often the only way to compensate someone for lost wages, medical bills or long term pain.  And anyone who we've represented in a personal injury case would tell you that they would much rather not be involved in a lawsuit (because we're careful about the cases we handle and clients we work with).

We also believe that there is significant misconception surrounding “tort reform” that should be cleared up.  We're going to address some of the other “reforms” in other posts, but here we want to talk about the cap on damages in medical malpractice cases. 

Proposed Cap in Medical Malpractice Lawsuits

The proposed damages cap in Congress would limit what are known as “non-economic” damages in a medical malpractice case to $250,000.  Non-economic damages are damages to compensate for pain and suffering and other losses that are not monetary in nature.

Now, you might say, $250,000 is a ton of money!  And you would be right.  Except that it's not when your entire way of life has been ruined by bad medical care.

Let's look at an example:  Jerry is an athletic 33 year-old, who just got married and started a family.  In his free time, Jerry loves to play basketball, hike, ski, walk his dog and do anything he can outdoors with his wife and 4 year-old.

One day Jerry notices that he's developed a painful lump around his knee.  He's in good shape, so he knows that this doesn't feel right.  He goes to see his doctor, who refers him to an orthopedist for a consultation. 

The orthopedist is in a rush that day, and does a quick exam and determines that it's just a cyst, is nothing to worry about, and doesn't require any further treatment. 

A couple of months later the mass is larger, so Jerry goes back for another look.  Again, the doctor is rushed, and again says it's just a cyst.  He doesn't order an MRI, CT scan, or any other diagnostic test that could rule out a more serious condition.

Flash forward a year and the mass is very large.  At this point when Jerry goes back he is told that he has a stage three synovial sarcoma (a somewhat rare cancer that disproportionately affects young, athletic males), which will require a major surgery in order to prevent it from spreading further.  Jerry has the surgery, after which he is left with a major foot drop that will leave him with a pronounced limp with shooting nerve pain for the rest of his life.  He will never again be able to jog, run, hike, actively play with his children or do anything remotely physical.  And the worst part is that had the doctor paid attention the first time, he could have removed the mass and prevented the whole thing.

Capping Damages to the Most Severely Injured Does Nothing to Deter Bad Lawsuits

In Jerry's case, he has already suffered severe pain and suffering, which will now continue for the rest of his life.  In this situation $250,000 does not seem like enough to compensate him for a lifetime of pain, the inability to be physically active, and the loss of ability to play with his children.

The proponents of tort reform claim that placing caps on damages will prevent “frivolous” lawsuits.  This argument misses the mark.  Given the difficulties in proving a medical malpractice suit, if a plaintiff actually makes it to trial and then is so damaged that that a jury awards him or her more than $250,000 in damages, it's hard to say the claim was frivolous.

The reality is that medical malpractice lawsuits are some of the most difficult, and most expensive, claims in the civil justice system.  The lawyers who handle these cases (like us) know that, and know that it makes absolutely no sense from a practical business perspective to file medical malpractice lawsuits that lack merit.  Additionally, in New York at least, there are already protections to weed out “frivolous” malpractice suits.  Before you are even allowed to file a lawsuit, you need to find a physician to look over the records and confirm there's a basis for a malpractice claim. 

Capping damages for those who are the most injured because of poor medical care does nothing to prevent bad lawsuits.  It only serves to prevent individuals with meritorious claims from being made whole and discourages plaintiff's attorneys from taking these cases on in the first place, given the significant investment of time and expense that is required.   

If you have questions about medical malpractice call us today.  Or for a quick and confidential case review complete our medical malpractice questionnaire here.

About the Author

Scott M. Peterson

Scott M. Peterson is the founding partner of D'Orazio Peterson, having left a partnership at a large regional law firm to limit his practice and focus on exclusively representing individuals in a small number of employment and serious injury/medical malpractice matters. Scott's favorite part of practicing law is getting in front of a jury and standing up for an individual against a large company or institution.

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