IS A CAP ON JURY AWARDS A GOOD IDEA? THAT DEPENDS. HOW DO YOU FEEL ABOUT PROTECTING ARIZONA’S CHILDREN AN ELDERY?
As I use this space to delve into the issue of tort “reform,” I want to address a couple of items.
As I want to be fair, I am always quick to point out my bias. I am a personal injury lawyer. My wife and I run our practice helping the seriously injured. Though I have strong feelings about any subject relating to helping the injured, I also have strong feelings about protecting the doctors and allowing them to practice medicine and thrive. However, capping damages does not protect most of our doctors. Instead, it protects the most negligent doctors. It does not only hurt the victims of that neglect, but hurts the most seriously injured the most.
The idea being debated is whether to “cap” damages. In other words, after a jury has found a doctor negligent and found a fair amount of general damages to be, say, $500,000 – and after a judge who heard the case does not strike down the award as unreasonable – both the judge and jury are overruled. An arbitrary ‘cap” on the damages is put in place, preventing the person that was a victim from receiving the full damages. Even if the doctor admits he caused the errors and admits the person will spend every day for the rest of his life in excruciating pain as a result of his admitted mistake the jury is limited in the amount it can award for special damages.
Of course, a cap on general damages will limit some lawsuits. Mostly, it will affect children and the elderly. It is, above all, these groups that will suffer the most harm. It is these groups that will be left open to almost any injury caused by a doctor and have no way to address it in the legal system.
Let’s use an example. Assume that a 35 year old man making $50,000.00 a year went into get his tonsils out. A simple surgery. Well, the surgery failed because the anesthesiologist did not realize that the oxygen that was being supplied to help the patient breathe had been cut off. It was his job to monitor the flow of oxygen. Assume the anesthesiologist admits he was not paying attention and failed to see that the machine monitoring the flow of oxygen had been unplugged. Though an alarm should have sounded when this happened, the anesthesiologist admits he made many mistakes that caused someone who went for a simple procedure — a tonsillectomy — to come out brain dead. This person will live the rest of his life in a vegetative state.
What does this mean? There will not be huge medical bills. The family can care for this person. But he will not know his name. He will not raise his children. He will not be there for his family. He will simply live out the rest of his years having no understanding of where he is, or who he is.
Now, in this case, even with an award and a cap on damages, you can expect a lawsuit will still come. The lawsuit will come because of the wages lost. The lost wages to this individual will be over a million dollars. Even if you cap the damages, it will not likely prevent the family from bringing this case. Now, of course, this case has merit. Someone made a major mistake and somebody will pay. Unfortunately, the value in this case exists only for the person making a very good living while young. If the same admitted neglect and same horrible outcome happened to a child or a retiree? This hypothetical anesthesiologist walks away without facing a lawsuit. It will likely never be filed. Quite simply, the cost of bringing the lawsuit will be too high with a cap in place.
Why is that? Because if a child went to have the same tonsillectomy, nobody could afford to bring the case. The easily demonstrated, significant wage loss is not there. The amount of the jury award could be capped at $250,000. And since it can cost upwards of $100,000 for a lawyer to even attempt to bring the case, it is unlikely that anyone could afford to bring this case. How about a retiree? Well, most retirees are not earning significant amounts of money . . . they are retired. As a result, no matter how negligent a doctor was in the care of a retiree or child, very few lawsuits could be brought on their behalf.
OK, so you understand the problem, but you still have some need to make sure doctors are not being sued without merit. Good. Me, too. Fortunately, there is a law in this state that requires that in most medical malpractice cases, an expert in the field certify in an affidavit that the case has merit, and is not a baseless lawsuit. Cannot find a doctor what the appropriate area of expertise to back up your claim? No lawsuit. That law has already been put in place.
Now that we’ve protected doctors, there is no need to pass a law capping damages at the expense of the most seriously injured, particularly the injured elderly and the injured children. We’re going to hear a lot about this in the coming months. But let’s remember, we need to protect everybody in society, not just those who are making money.