Medical Malpractice Caps and Public Costs, Who Really Pays?

A few weeks ago, the Florida legislature had before it a bill that would approve a $30.8 million claim against a public hospital for medical negligence. Even though a jury issued the ruling against the hospital, the plaintiff in the case has been forced to get an actual bill passed through the state legislature before collecting any part of the award.

Actually collecting an award after a legal determination is often no easy task. In fact, many corporate and insurance interests continue to push for more and new ways to make collection even harder by limiting the rights of injury victims via tort reform.

What is almost always forgotten in these cases is that if the wrongdoer is not required to pay for the consequences of these errors, then the cost is borne by taxpayers through Medicare, Medicaid, Social Security Disability, home healthcare, rehabilitation, vocational training, unemployment benefits and so on. Judicial fairness, therefore, ensures that the public is not required to pay for the negligence of medical professionals.

In the Florida case, a jury found in favor of 14-year-old plaintiff and his parents in a suit alleging that the hospital‘s negligence during plaintiff‘s birth resulted in his cerebral palsy. In 2007, a jury awarded the plaintiff $30.8 million, mostly for future 24-hour care and therapy that he will need for the rest of his life which runs into the millions, and more precisely by the jury‘s estimation, $30.8 million.

The hospital claims that it does not have insurance coverage and that it would have to cut several of its programs to pay the claim. Having no other remedy, the plaintiff and his parents filed a claims bill with the Florida legislature to force the hospital to pay the award. During the four years since the jury verdict, the hospital has done little to try to settle the claim or negotiate with the plaintiff, with one Florida Senator describing its actions as “stiff-arming” the family. Unfortunately, the hospital‘s conduct in this suit reflects a trend where insurance companies and large private and public entities seek to intimidate plaintiffs in an expensive game of attrition.

The result is that insurance companies, which have actually seen profits rise in recent years, are able to keep more money it their coffers. Instead, the injured family is forced to lean on the public for resources to provide the day-to-day care needed.

Unfortunately, some continue to push for new laws which would shift responsibility away from wrongdoers and toward the public even further.

At the same time that this Florida case was making national news, Tennessee was in the midst of a very different tort -related debate. Emboldened by the passage of the Tennessee Civil Justice Act of 2011 (Act), the business coalition that supported the bill is now pushing for further liability protection for business, insurance, and health care organizations.

The 2011 Act caps punitive damages at $500,000 and non-economic damages, including pain and suffering, at $750,000. Additionally, the Act restricts the claims that can be brought under the state Consumer Protection Act.

Business coalitions in Tennessee now seek to pass a series of bills that would further curtail individuals‘ rights to recovery in tort claims. The gist of the legislation is to keep injured people out of court by making these extremely costly and risky lawsuits dramatically more so for plaintiffs. One such bill forces a plaintiff to pay the litigation costs of a defendant if the plaintiff refused to settle and wins less that 75% of the settlement offer at trial. A similar bill would compel a party who loses in a motion to dismiss to pay the litigation costs of the winning party.

Proponents of these bills say that they would prevent the mythical frivolous medical malpractice lawsuits. As insurance industry profits continue to soar while medical malpractice claims decline, it is not hard to see the motive or the interests behind the false logic. The fact is these limits simply shift the burden of these injuries to the public and away from the responsible parties and more importantly their insurers who are picking pockets on both sides of the equation.

Collins & Collins, P.C.
Albuquerque Attorneys

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