Damages Caps for Medical Malpractice Injuries: Fiscally Sound or Unconstitutionally Invalid?

A recent post to this blog featured the HBO documentary “Hot Coffee” and its underlying issue of tort reform in this country.  Some argue that tort reform will solve problems ranging from alleged frivolous lawsuits to stagnant job creation.  Those against tort reform, including many attorneys who represent victims and other proponents of victims rights, argue that damages caps and other legislative changes keep victims from filing legitimate suits for medical malpractice injuries, and violate our constitutional right to a jury trial in civil suits.

A West Virginia Supreme Court decision issued in June 2011 struck a blow to those who argue that it is unconstitutional to limit damages a jury can award in suits for medical malpractice injuries.  In 2003, the West Virginia Legislature reduced a cap on noneconomic (pain and suffering) damages in West Virginia in such suits from $1 million to $250,000 in most cases.  This Supreme Court decision, in a medical malpractice injury case called MacDonald v. City Hospital, was the first test of the new law with the lower cap.  The West Virginia Constitution, just like the U.S. Constitution, “preserves” the right of trial by jury in civil cases, and MacDonald argued that his right was violated if the jury could award him no more than $250,000 for his pain and suffering. The West Virginia Supreme Court held that capping MacDonald’s award did not violate his right to a jury trial.  MacDonald also argued that the damages cap law violates the “separation of powers” because the legislature is essentially telling the judicial branch what juries can and cannot do in awarding damages.  However, the W.Va. Supreme Court disagreed.

Circuit Judge Ronald Wilson wrote a passionate dissent that also addressed the wider issues of judicial independence and equal protection of the laws.  Judge Wilson said that the damages cap law is an inexcusable concession by the Legislature to the will of special “pressure groups with selfish interests.”  Judge Wilson added that the high court’s unwillingness to protect the peoples’ rights was motivated by the justices’ desire to win expensive elections.  Judge Wilson argued that by pleasing one faction of voters (medical professionals who are often sued), the court disregarded its duty to protect the fundamental rights of all West Virginians.

Other courts around the country are weighing in on the damage caps issue.  In 2010, the Supreme Court of Illinois found a legislated non-economic damages cap to be unconstitutional because it facially violates the constitutionally guaranteed separation of powers clause.  This case, LeBron v. Gottlieb Memorial Hospital, involved catastrophic birth injuries to a child whose parents believed that the lifetime damages of their severely disabled daughter will far exceed the statutory limits on what they could recover for her pain and suffering due to the defendants’ negligence at her birth.  For the third time in thirty-one years, the state’s high court found that the Illinois Legislature’s attempt at capping, which this time limited liability of each physician to $500,000 per case, and of each hospital to $1 million per case, is an intrusion on the judicial branch’s powers, and is therefore invalid on its face.

Also in 2010, the statutory attempt of the Georgia State Legislature to cap noneconomic damages at $350,000 per claimant in a medical malpractice suit was declared invalid.  The Georgia Supreme Court held that the act violated the state constitution’s guarantee to a trial by jury, a right that the court found has been utilized in medical malpractice suits in Georgia since at least 1798.  The trial jury awarded the plaintiff in this case, Nestlehutt v. Atlanta Oculoplastic Surgery, a total of $1,150,000 in noneconomic damages, which would have been reduced by $800,000 if the Supreme Court had not denied the defendants’ appeal for a new trial consistent with the damages cap legislation.

More recently, Louisiana continues to struggle with disputes about the constitutionality of its 36-year-old statutory cap on all damages of $500,000 per medical malpractice award. In August 2011, an appellate court ruled in Oliver v. Magnolia Clinic that the damages cap was unconstitutional.  The court intended that the severely disabled minor, whose health issues are due to the nurse practitioner’s failure to test and diagnose a childhood cancer while it was still highly treatable, should be able to collect the $6 million general damages awarded by the trial jury.  A September 2011 trial court in a different case agreed with the appellate court’s finding that equal protection and adequate remedy guarantees are violated by the cap, and extended the finding as relevant to all types of healthcare providers.

Currently, Pennsylvania is not one of 30 states with laws limiting damages in medical liability actions; the Pennsylvania Constitution specifically prohibits damages caps. However, in July 2011, Pennsylvania Republican Gov. Tom Corbett signed a bill that changes the way damages payments are divided among multiple defendants.  Before the bill, a plaintiff could collect a jury award from whichever defendant(s) could pay, no matter which defendant was “most guilty.”  Under the old law, if a truck driver on the job caused an accident, and his employer was also sued for the victim’s pain and suffering from catastrophic injuries, the company might have paid most of the jury award because it had the “deepest pockets,” even if the jury found that the driver’s personal negligence caused the accident.  Under this new law, the employer will only pay the percentage of the award equal to the percentage of fault the jury assigns to the company.  If the negligent truck driver can’t pay the rest of the victim’s award for his catastrophic injuries, the company will no longer have to “cover” the difference.

In the end, the victim will suffer the consequences of his injuries and he will also suffer the loss of his constitutional right to an effective jury trial.  As Judge Wilson said in his MacDonald dissent, “If a person has a right to a jury trial and the jury award is completely taken away, did that person have a court open to him for an injury done to him? Did he have a remedy?”

           

Consider another example involving a dram shop, or liquor liability lawsuit. Many states, including New Jersey, impose liability on a dram shop (an establishment such as a bar or tavern) that sells alcohol to a visibly intoxicated individual who then leaves the tavern and causes a motor vehicle accident with an innocent plaintiff.  Suppose that plaintiff suffers brain injuries and she seeks damages against the drunk driver.  Under dram shop law, the plaintiff can also sue the bar that served the alcohol to the drunk driver. However, if the civil suit takes place in a state such as Pennsylvania under a new tort reform law, the plaintiff might not collect the entire jury award.  If the noneconomic damages awarded are $100,000, and the driver is found 80% liable while the bar is 20% at fault, the bar would now only pay $20,000 of the damages.  If the defendant driver has no means to pay, the injured plaintiff will not get the award amount to which she is entitled for the pain and suffering caused by her catastrophic injuries.  This scenario demonstrates Judge Wilson’s concerns about a fair “remedy” for innocent victims under tort reform.

           

Laws of this type discourage legitimate lawsuits for wrongs such as brain injuries caused by negligence or malpractice.   If plaintiffs can’t recover for their injuries because the defendants with the most fault have no money to pay, plaintiffs may not sue at all for fear that legal expenses will be higher than the award they will be able to collect.  Should all taxpayers bear the cost of care for negligently injured plaintiffs who can no longer afford to cover their living and medical expenses?  Clearly the new law will prevent some deserving plaintiffs from seeking just remedies, and will further burden the taxpayers who foot the bill for social entitlement programs such as Medicaid, Social Security Disability Insurance, and unemployment insurance.

           

The personal injury attorneys at Messa & Associates support victims of catastrophic injuries including medical malpractice, burn, birth and brain injuries.  Accident attorneys at Messa & Associates believe personal injury victims should have the ability to present their cases in court and have a jury determine a reasonable and fair amount to help injured parties recover their damages. We believe that right to a trial by jury guaranteed by our Constitution is a fundamental right worth fighting for in cases of catastrophic personal injuries.  For more information on tort reform, please contact us at 1-877-MessaLaw or visit us at www.messalaw.com.

1.7 Million Toys Recalled

Little Tikes has expanded a 2009 recall of toy workshop and tool sets to include 11 additional models because of a choking hazard posed to young children.  The recall includes 1.7 million play tool sets with oversized, plastic toy nails.

The toy maker previously recalled about 1.6 million workshop sets and trucks with the same toy nails in 2009.

The workshop and tool sets were sold by retailers nationwide from 1990 through 2004.  At least two children have choked when the toy nail became lodged in their throat.

Messa & Associates is experienced in handling cases involving injuries to children as a result of products with manufacturing and design defects.  In addition to their research and knowledge, our attorneys work with highly regarded experts to prepare every case.  If your child has been seriously injured by one of the recalled Little Tikes toy workshop or tool sets, please contact us at 1-877-MessaLaw or visit us at www.messalaw.com.

Pennsylvania Medical Malpractice Suit Tackles New Ground in Preconception Tort

Under Pennsylvania law, physicians, nurses, and other healthcare providers in Philadelphia and municipalities throughout the state owe a duty of care to all patients, whether they are children, pregnant women, active adults, or the elderly. When a medical professional’s error meets the legal elements of negligence, a successful medical malpractice suit can ease the burden of the long-term problems and costs caused by the doctor’s mistake.

In a recent wrongful death case that arose because of medical negligence allegedly committed by Pennsylvania obstetricians, an appeals court found that even a third party—a future, not yet conceived, child—is owed a reasonable duty of care. Previously in Philadelphia, and throughout all counties in Pennsylvania, courts found that medical professionals only owed a duty of care to third parties when mishandling of a communicable disease or contagious illness caused harm to someone other than the patient who was improperly diagnosed, advised or treated.

In Matharu v. Muir, an ongoing Luzerne County case reviewed by the Superior Court of Pennsylvania in June 2011, a doctor, particularly an obstetrician, may be sued for medical malpractice not only if a negligently erroneous decision or treatment of a pregnant woman affects the mother or baby in the current pregnancy, but also if the mistake could affect a future pregnancy or baby.

The case arose from a situation in which the defendant obstetrician’s patient had Rh-negative blood and the father’s blood was Rh-positive. In such a case, if the baby has Rh-positive blood that inadvertently enters the mother’s system, her body will try to reject the baby. To prevent this problem, which can lead to serious health problems for the child, the mother is typically treated with injections of Rh immunoglobulin, or RhoGAM, at 28 weeks of pregnancy, and again right after the baby’s birth.

The mother in the Matharu case had the Rh blood incompatibility problem that was properly treated with injections of RhoGAM during her first pregnancy in 1997. However, in her second pregnancy in 1998, under the care of the defendants, Mrs. Matharu was not treated with RhoGAM even though it was found that she had been exposed to the baby’s Rh-positive blood during the third trimester. Several pregnancies later in 2005, under the care of a different obstetrical practice, the mother’s heightened sensitivity to her unborn baby’s Rh-negative blood allegedly caused the fetus to develop severe anemia.

While in the womb, the baby was given a blood transfusion, during which it developed an irregular heartbeat. Despite an emergency C-section, the baby died two days later. The plaintiff parents believe that because the defendant physicians did not treat her with RhoGAM in 1998, Mrs. Matharu’s body had become super-sensitized to Rh-negative blood, allegedly rejecting the incompatible blood of the 2005 fetus that led to the baby’s tragic death. The Matharus are suing the obstetricians, claiming that they negligently allowed the mother to go untreated after her 1998 pregnancy, and that this negligence resulted in the loss of their child born in 2005.

The court held that an obstetrician has a duty of care to help prevent health problems or death for the mother and the unborn baby, as well as for any future fetuses. The defendants, therefore, even though they were not involved in the 2005 pregnancy, did owe a duty of care to Mrs. Matharu in 1998 and to all of her future children who might be injured by the untreated Rh incompatibility problem.

The court stated that the baby born in 2005 was “in a class of persons whose health/life was likely to be threatened by defendants’ failure to administer RhoGAM to Mother in 1998.” The court did not agree with the argument made by the defendants’ medical malpractice attorneys that the case should not be allowed to proceed because the parents assumed the risk of rejection in future pregnancies after Mrs. Matharu did not receive RhoGAM treatment from the defendant obstetrical practice in 1998. On this point the appeals court agreed with the trial judge that it was not clear that the parents understood the risk fully, and the unborn child could certainly not be expected to assume such a risk simply by being conceived.

This case falls in an area of Pennsylvania medical malpractice law called “preconception torts.” Philadelphia-area medical malpractice lawyers may soon rely on this ruling to broaden the scope of negligence in other cases. It is very likely that the Pennsylvania Supreme Court will take up the issue on appeal, and experienced medical malpractice attorneys in Philadelphia and all counties of Pennsylvania will be watching for the final outcome.

The law firm of Messa & Associates litigates cases like this involving birth-related injuries or other cases involving medical errors resulting in injury or death. The Philadelphia-based firm is known for its medical expertise, and has a wide network of respected physicians and university professors to call upon as medical experts, both for the purpose of evaluating the viability of a case, and for testifying in court.  In addition, Messa & Associates has a physician and nurse on staff to assure knowledgeable research and representation at all stages of the case.

A Philadelphia medical practice attorney with the expertise and knowledge that is required to get the results you need is available at Messa & Associates. Call 1-877-MESSA-LAW toll-free to set up a free and confidential consultation regarding all aspects of your or your loved one’s injury. Don’t be overwhelmed by the battle for your rights. Get a compassionate, attentive and aggressive team to battle for you. Call today or visit us at www.messalaw.com.