Firm-Wide blog

Lawmakers Revisit Medical Malpractice Caps

By Burg Simpson
July 11, 2017
3 min read

The specter of non-economic damage caps has haunted medical malpractice victims – and the attorneys who fight for them – since the 1970s. But it has not seen this level of renewed interest since former President George W. Bush proposed a nationwide cap on medical malpractice awards in 2003.

Just before the July 4th recess, the U.S. House passed a bill to limit medical malpractice damages to $250,000. The bill, which narrowly passed without a single Democratic vote, would institute a three-year statute of limitations from the date of injury – or one year after its discovery. The legislation, part of the GOP’s larger health care reform effort, would apply only to lawsuits over coverage the federal government funded. Additionally, the bill would preempt any applicable state laws.

President Trump has already declared his support for the bill.

State Courts Strike Back Against Cap

At least two state courts disagree. In Wisconsin, the 1st District Court of Appeals ruled unconstitutional the state’s $750,000 cap on non-economic damages in medical malpractice lawsuits.

Milwaukee resident Ascaris Mayo – along with her husband – sued after a misdiagnosed strep infection forced doctors to amputate all of her limbs in 2011. The jury in her original 2014 trial awarded her more than $25 million in damages, including $15 million for pain and suffering and $1.5 million for her spouse’s loss of companionship.

This is not the first time Wisconsin’s lawmakers have been rebuffed in their bid to limit medical malpractice awards. Wisconsin’s Supreme Court struck down a similar law in 2005, ruling that it violated the state’s assurance of equal protection.

About a month earlier, the Florida Supreme Court ruled that state’s limit on medical malpractice case damages was unconstitutional, as well. This court’s 5-4 decision also cited a violation of equal protection. Dental assistant Susan Kalitan brought this case after a 2007 carpal-tunnel syndrome surgery left her with a perforated esophagus caused by tubes inserted while administering anesthesia.

Kalitan filed the lawsuit in 2008 against the North Broward Hospital District, among others. The jury originally awarded Kalitan $4 million in non-economic damages.

Colorado’s Unique Solution

All but 17 states have passed legislation capping non-economic damages, with limits that range anywhere from $250,000 to $1.25 million. While Colorado is one of them, the state’s approach to limited non-economic damages is unique, even if it remains just as misguided. Colorado limits non-economic damages to $300,000 but also imposes a limit on total damages at $1 million.

Medical malpractice suits have long been portrayed as a barrier to affordable health care. That longstanding myth does not hold up when exposed to facts. A Congressional Budget Office report revealed that “Malpractice costs account for less than 2 percent of health care spending.”

In fact, over the last decade, medical malpractice costs have either fallen or leveled off – in states with or without award caps – suggesting these artificial limits do little to control costs and everything to control the rights of people who have already been victimized once by their injuries.

Have You Suffered Medical Malpractice?

Burg Simpson’s experienced Denver medical malpractice lawyers have represented dozens of individuals who have suffered serious personal injuries at the hands of negligent doctors and other reckless health care providers.

Our Burg Simpson Colorado medical malpractice attorneys are committed to fighting for victims of medical malpractice injuries and wrongful deaths by taking the big insurance companies and hospital networks. If you have been injured during the course of medical treatment you received, call us at 303-792-5595 or fill out a Free Case Evaluation form here.

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