President Obama’s health care reform is a triumph for those, like us, who oppose the unfair setting of limits on malpractice awards. We don’t believe that state lawmakers should have the right to tell someone who has lost use of their limbs, or suffered permanent brain damage, that their case is only worth $350,000, or $500,000. Under the law, that should be a jury’s decision, not a legislator’s.
Now, there is more legal backing for our viewpoint, out of Washington. Advocates of setting of caps on malpractice awards against doctors had been lobbying in D.C. for some support for their position as part of the health care changes.
But the overhaul that the president signed into law last week doesn’t address the issue of malpractice-award limits, according to The Wall Street Journal. http://online.wsj.com/article/SB10001424052748703416204575145683793783008.html?mod=googlenews_wsj
Proponents of the caps claim that huge malpractice verdicts have sent the cost of malpractice insurance through the roof in this country.
These advocates also argue that fear of being sued for malpractice is contributing to health-care costs skyrocketing, as physicians take defensive measures such as ordering unnecessary tests and procedures to cover their backs in case they are sued later on http://www.nytimes.com/2010/03/27/health/27patient.html?ref=business
Obama’s health care reform marks the third defeat that proponents of medical malpractice limits have suffered in recent weeks. Both the Illinois Supreme Court and the Georgia Supreme Court just tossed out limits in those states, $500,000 and $350,000, respectively.
The Journal pointed out that some malpractice changes did make it into the new health-care legislation. For example, the new law sets aside $50 million for states that try to slash malpractice costs by creating alternatives for trying cases or improving patient safety.
But there is also a provision that lets attorneys for plaintiffs to bypass any alternatives, and instead file suit in state court.
In the Georgia malpractice cap that was overturned, the case involved was that of a woman awarded $1.15 million for pain and suffering she suffered from a botched facelift.
In Illinois, the case led to that state’s malpractice limit being tossed out stemmed from a girl being born with brain damage.
The Journal quoted Theodore Olson, the attorney for the doctor in that case. He said it was hard to understand the notion that the state Legislature couldn’t set limits on damages. Why so?
If a jury of her peers believes a woman deserves $1.15 million because her face was like an open wound after her facelift, who are Georgia lawmakers to say she should only get $350,000?
Attorney Gordon Johnson
Past Chair Traumatic Brain Injury Litigation Group, American Association of Justice
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