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Limiting Awards for Conscious Pain and Suffering: Doctors Cry Wolf and the Public Suffers a Terrible Injustice

Apr 1, 2003 The current outcry from doctors is: "We can't afford to practice medicine anymore because personal injury lawyers and runaway juries have driven malpractice insurance premiums out of control." Politicians, fearing the threat of job actions by physicians and the power of the medical lobby, have sided with the doctors and commenced a crusade on the federal and state levels to impose limits ("caps") on awards for conscious pain and suffering, the most important element of damages in most medical malpractice actions. These caps on recoveries will be devastating to the people least able to afford such reductions, the victims of medical malpractice themselves.

The damages which may be recovered in a medical malpractice case include such things as: lost earnings (past and future); medical expenses (past and future); loss of parental guidance: and wrongful death awards. However, the element of damages designed to place a value on the injured party's past and future pain and suffering (physical and emotional), and the "loss of enjoyment of life" he or she has suffered is the only award that attempts to restore a victim's life to some state of normalcy. In almost every case, however, money will never be an acceptable substitute for what the victim has lost or for the enormous suffering the victim has suffered and will continue to suffer. In fact, in all of our years of dealing with injured people, we have NEVER represented a client who would not give back his or her award for conscious pain and suffering just to have a pain-free, normal life again.

The imposition of limits on pain and suffering awards in medical malpractice cases is patently unjustified and unfair. In addition, such actions ignore the realities of the situation and make the victim suffer indignity on top of their injuries. The following will demonstrate the flawed reasoning behind caps on such awards.


    * Who committed the negligent conduct? The defendants in most personal injury cases cause accidents by random acts of negligence (drivers, store and property owners, construction companies, municipalities, etc.). In medical malpractice cases, however, the negligence is committed by highly trained professionals while performing their duties in fields where they are supposed to be the most skilled people. Thus, their mistakes are both unacceptable and demonstrate a degree of carelessness that is far greater than the simple negligence found in other types of cases.
    * The severity of the conduct: Ordinary negligence cases involve things like passing a stop sign or red light, a broken sidewalk, a puddle of oil, a defective stairway, or a falling ladder or scaffold. A medical malpractice case usually involves conduct such as: leaving medical instruments in a patient after surgery; amputating the wrong leg; killing a patient with the wrong medication or the wrong dosage of the right medication; letting a patient bleed to death in the emergency room; operating on the wrong side of a patient's brain; removing a healthy kidney while leaving in the diseased one; losing a cancerous tumor after it is removed but before it can be biopsied; telling a patient their pap smear is negative when, in fact, the patient has cancer; having a patient wake up during surgery because the anesthesiologist is a drug addict who uses patients' surgical anesthesia for his habit; or causing a baby that should be completely healthy at birth to suffer profound and irreparable brain damage or catastrophic neurological injuries such as erbs palsy or blindness. In other words, the conduct involved is, for the most part, extremely serious and anything but simple negligence.
    * The severity of the injuries: While a person can suffer almost any injury in an accident, medical malpractice produces a much higher percentage of more severe injuries for a number of reasons. The patient is usually in a weakened condition to begin with so that the malpractice causes far more serious injuries. In addition, unlike a car crash or fall down stairs, which are instantly observable, medical malpractice very often takes a considerable amount of time to reveal itself. Because of this, the injuries often progress much further before they are detected.
    * The consequences of the injuries: Consider the monstrous nature of the following hypothetical injuries and then decide if $250,000 is just compensation for what was taken away from the victims in terms of their ability to enjoy their lives or for the pain and suffering that will make the rest of their lives a living nightmare.
          o A brain damaged baby who will have a normal life expectancy but will always have the mental capacity of a 9-month-old simply because his mother's OBGYN failed to monitor her labor properly.
          o A mother of four young children will die of cancer because a doctor misread a pap smear or mammogram.
          o A fifteen year-old girl who had hopes of becoming a ballet dancer must now live in a wheel chair because her leg was amputated by mistake.
          o A college professor with a diseased kidney now has no kidneys because his good kidney was removed by mistake.
          o A perfectly healthy baby suffers a "withered arm" (erbs palsy) as a result of excessive force applied to the child's brachial plexus during birth.
          o An extremely active high school baseball coach is paralyzed because of negligence on the part of an anesthesiologist during routine surgery.
    * The vulnerability of the victims: Medical malpractice cases involve people who are already sick or injured to begin with. They are in no position to debate or evaluate the treatment or care they are being giving. Often, the patient's are infants or incompetents who have no ability to protect themselves from harm. Moreover, even in the case of fully aware and intelligent adults, the trust placed in a physician as a trained professional is likely to color the patient's judgment until it is too late.

In many states like New York, medical malpractice cases are litigated differently than other negligence cases. These "differences" make it more difficult and more expensive to prosecute medical malpractice cases. However, these differences also make medical malpractice cases more credible than other types of personal injury cases. For example:

    * In many jurisdictions, a medical malpractice case cannot even be commenced without a statement by a qualified medical expert that the facts and records have been reviewed and that, based upon that review, the expert believes there to be a viable claim for medical malpractice.
    * In cases involving medical malpractice involving a health care facility, New York and other jurisdictions have agencies (like the Department of Health in New York) that will review the conduct in question and render an administrative finding as to whether anything improper occurred. In this way, any problems are sure to be corrected at the facility if they exist, and litigation is either supported or discouraged by the findings of the agency.
    * In medical malpractice cases, there are defenses available to the defendants that are not available in other cases. For instance, a doctor who fails to diagnose cancer may defend the case on the ground that the plaintiff would not have survived even if the malpractice had not occurred. Thus, the defendant or his expert may actually admit there was malpractice but claim that there was no damage to the plaintiff. In addition, a doctor is permitted to claim that the plaintiff failed to follow medical advice or instructions as medication, rehabilitation, or activities, etc. This would decrease the size of the award even if there was malpractice.
    * On the whole, medical malpractice litigation is the most expensive to litigate. In addition to the normal litigation costs, the typical case requires an injured party to obtain copies of all relevant medical and hospital records, x-rays, CT scans, MRIs, and other diagnostic tests and reports. A medical expert must be retained to review all of the relevant records, prepare a comprehensive report, and testify at trial. In many cases, more than one expert is required to prove the case. As a result, it is not unusual for a medical malpractice case to cost $25,000 to $50,000 to litigate. Thus, many attorneys cannot afford to litigate medical cases and, even if they can, they will not accept cases with limited value. This is simply not a problem in other types of cases where even a minor injury or limited value will not prevent an injured party from obtaining just compensation.

Most medical malpractice cases that result in the plaintiff receiving money are ended by settlement and not trial. Doctors, however, want the public to believe that "runaway" juries account for much of the damages paid by their insurance companies. This is simply not the case. Thus, the public must be aware of the following:

    * In almost every medical malpractice settlement, the doctor is never exposed to any personal financial liability. This is not always true in other types of litigation where a defendant may have limited insurance or where he or she has injured more than one plaintiff. Thus, doctors enjoy far greater insurance protection than most other people. Why shouldn't they pay premiums that reflect their high degree of coverage?
    * Many of the most serious medical malpractice cases are settled by confidential agreements where the injured party agrees not to disclose the terms of the settlement. In this way the doctor and his insurance company can hide both the amount of the settlement and the conduct that led to it. It also allows the medical profession to make it appear as if there are less malpractice claims than there really are. Plaintiffs who need the settlement proceeds to pay for medical care or living expenses have little choice but to agree to these secret agreements. They are then precluded from discussing the matter with anyone. Since these substantial settlements drive up the cost of malpractice insurance considerably, why should doctors be heard to complain about the increases?
    * Settlements are agreements made by both sides to dispose of a case. Many malpractice settlements are, in fact, quite large. Since these settlements also serve to drive up the cost of malpractice insurance, how can the doctors complain? If they did not commit malpractice, or did not want to settle a case, why would they? So, if they consent to settlements in order to be released from the claims against them, why should the public feel sorry for them when their premiums go up?
    * In order to settle a claim brought on behalf of a child or the estate of a dead person, court approval must be obtained in the form of an "infant's compromise" or "death compromise." Thus, the court itself is often involved directly in the settlement process. This ensures a degree of fairness in the proceedings. When this type of case is settled pursuant to a court order, how can a doctor complain if his insurance premiums increase?

Simply stated, this argument is nothing more than a sham which the medical profession should be ashamed of.

There are many reasons why the "runaway jury" story is a complete fabrication. Equally unfair is the portrayal of plaintiffs' trial lawyers as a pack of blood thirsty attorneys who have nothing better to do than victimize innocent doctors. Consider the following:

    * The majority of medical malpractice cases that reach trial, and are not settled; result in verdicts for the defendants. Thus, the vast majority of cases that cause malpractice insurance premiums to go up are settlements that have been agreed and consented to by the doctors and their insurance carriers and not jury verdicts.
    * Legal fees in medical malpractice cases are often governed by separate rules made by the courts or other tribunals responsible for attorney conduct. In New York, for example, attorneys' fees in medical malpractice cases are significantly less than in other types of cases. In fact, as the amount of the recovery increases, the allowable legal fee decrease. This concession to the medical lobby is never discussed by the doctors when they threaten their walkouts and slowdowns.
    * Even if a verdict is excessively high, the law is full of protective measures that ensure SUCH VERDICTS WILL NEVER BE COLLECTED! These measures, all of which favor defendants, are never mentioned by the medical lobby.
          o Defendants have an absolute right to appeal an excessively high verdict.
          o Even before an appeal, the trial judge has the power to decrease an excessive award or order a new damage trial if the award cannot be reduced appropriately. The trial court even has the power to dismiss the case entirely if it believes the plaintiff failed to prove his or her claim.
          o On appeal, the appellate court may reduce the award to an acceptable amount or order a new trial on the issue of damages.
          o Every jurisdiction has well established rules by which the courts review damage awards. The standard may be one by which the court compares the award to others for similar injuries (the current standard in New York and many other states). Other states consider if the award "shocks the conscience of the court." In any event, no runaway verdict escapes the scrutiny of the trial court or at least one appellate court.
          o Obviously, big verdicts make splashy headlines and juicy news stories. The reality, however, is that very few of these verdicts survive long enough to be collected. Although the medical profession knows this, it insists upon hiding that fact from the public. It is the same logic prosecutors use when they indict someone simply for effect. The indictment makes the front page of every newspaper along with the person's name and a photograph of him being lead away in handcuffs. When a court dismisses the indictment three months later, however, the story appears on page 37 of the paper where no one sees it. In the same vein, the media never publishes stories of verdicts that are reduced, new trials that are ordered, or cases that are dismissed.

Another fact the doctors fail to mention to the public is that the legislatures of many states have made numerous other concessions to the medical lobby over the years. These include:

    * Passing shorter statutes of limitations for malpractice cases. This reduces the time in which injured parties may bring their cases.
    * Requiring a certification by a medical expert before being able to commence a law suit for medical malpractice.
    * Requiring attorneys to take much smaller fees in medical malpractice cases only.

We at Parker & Waichman ask our subscribers to remember this information the next time they hear the medical lobby or legislators claiming that doctors are the victims of runaway verdicts, blood thirsty trial lawyers, and unaffordable malpractice insurance. Our readers might also want to remember "the boy who cried wolf."

For further information regarding the rights you or your loved one may have with respect to this matter contact PARKER & WAICHMAN immediately by calling 1-800-YOURLAWYER or visiting
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