Caps on Damages-it only hurts the one you hurt

A trial is not conducted on a level playing field. In civil cases, it is substantially tilted in favor of the defendant. On its surface, that does not seem very fair. While there are reasons why tilting the playing field in favor of the defendant is justified in a criminal case, there is little, if any, justification for this to be so in a civil case. Unfortunately, the result of the uneven field is that many seriously injured individuals who have been harmed due to the carelessness of another person do not receive any compensation for the losses they have suffered. Of the many reasons why the bad guy is able to dodge the bullet of responsiblity for the harm he has caused, one of the most egregious protectors of the negligent are Caps because Caps result in the seriously injured still losing even though their claims have been found to be legitimate and they have won.

Caps. The bane of the injured and the Holy Grail of the liablity insurance industry.

Caps are legislatively imposed maximums on the amount of damages a negligently injured person may recover from the negligent hospital or physician who caused their injury. Caps are the cornerstone to "tort reform" and, in particular, to "health care reform" legislation promoted by the insurance industry and the medical profession.


Is there any benefit for the common good achieved by Caps? There are many claims regarding the good they achieve but little evidence to back up those claims. Most, if not all, of the studies into the value of Caps that have been conducted by objective organizations have concluded they serve no real purpose other than to benefit the liablity insurance industry. But what is often lost in the discussion of Caps is the real price we pay for having Caps. Regardless of the value of Caps, whatever it might be, you cannot tell if Caps are worth it unless you know the price you are paying for them.


The devil is in the details, of course, and the best way to appreciate the price we pay for Caps is to look at what happens in cases where they come into play. In doing this, the first thing to note is that Caps have nothing to do with "absurd vedicts" and 'out of control" jury awards that drive much of the argument of tort reform advocates. A trial judge, by the way, always has had the ability to intervene in the rare case where such unreasonable results occur and order a new trial or reduce the amount of the jury verdict. Caps, by definition, apply only to cases with merit. The medical negligence case has been validated by a jury that has found in the injured patient's favor and has made an assessment of the compensaton needed to fairly address the injuries suffered. Before Caps apply, the merit of the case has been further validated because the trial judge has reviewed the jury's verdict and has found the jury's decision on negligence to be reasonable and its award of compensation to be fair. In short, by the time the Caps come into play, the "frivilous cases" have been disposed of, one way or the other.


To see the effect of Caps, we will use as an example an adult in his thirties who is a computer programer and an outdoor enthusiast whom we will call Bob. Bob has a wife and two young children. Bob suffers a herniated disc injury during a family camping outing and elects to have surgery to repair the disc. Bob suffers a permanent spinal cord injury during the surgery that leaves him a paraplegic with bladder and bowel incontinence and impotence. A civil medical negligence case is filed alleging that Bob's injury during the surgery was due to carelessness on the part of the surgical team.


On the eve of trial, the surgeon and hospital admit that negligence occurred and that it was the cause of Bob's paraplegia. Bob's paraplegia does not impact his employment or his career as a computer programer since he is able to do his work from his wheelchair using his brain instead of his brawn. Bob has medical insurance that covers the $350,000 of medical expenses he incurred for treatment and rehabilitation. However, Bob's paraplegia and related injuries have clearly impacted on other aspects of his life, both as an individual who enjoyed a wide variety of sports and recreational activities, as a father in participating physically with his children in their activities and in family outings, and as a husband in his personal relationship with his wife.

The jury's verdict is for $2,350,000 representing $350,000 for the medical expenses and $2,000,000 as compensation for the human suffering and loss of enjoyment of life Bob had suffered and and will experience the rest of his life. One would be hard pressed to argue with the reasonableness of this jury verdict or that the compensation awared was not justified.


But what will Bob actually receive. Enter the Caps! The effect of the Caps will vary as each State's Caps have their own peculiarities. For our example, we will use Maryland since it is at least fairly representative of how most States' Caps work.


$2,000,000 of the compensation Bob was awarded by the jury will be automatically reduced to $650,000 because, in Maryland, that is the Cap on "non-economic" damages that can be recovered in a medical negligence case, regardless of how seriously the physician or hospital has needlessly injured their patient through their carelessness.


What about the $350,000 "economic" damage award? That really does not factor into what Bob will receive. Even though Bob paid the premiums to have the medical insurance coverage, the $350,000 will go to the medical insurance company which has a lien on Bob's recovery for the amount of medical expenses it paid.


Cost to Bob of the Caps---$1,350,000. Cost to society------the price we pay in the long run for not having a judicial system that is fair and for having an ever enlarging segment of our population that not only feels cheated and betrayed but in fact has been cheated and betrayed. Bob is just an example, of course. The artificial ceiling on what is fair compensation for injuries caused by medical negligence applies to everyone and every type of human suffering that is non-economic. Caps apply to the life time suffering and the diminished ability to enjoy life experienced by our cerebral palsy children whose brains are oxygen starved and injured at birth because the obstetrician ignored the labor and delivery nurse's call and stayed in bed. It applies to our breast cancer wives, mothers and daughters who spend the rest of their shortened lives fighting metastatic disease or living in fear of it because a radiologist did not see what was there to be seen in a mammogram. And it applies to our fellow citizens who go from being productive care giving people to damaged, physically deformed and completely dependent individuals because they were ignored for hours in the Emergency Room while they suffered an evolving stroke or heart attack.


This is not a small price to pay. And for those that are asking us to pay it, should we not first insist on their producing hard evidence to back up their claims that Caps will actually achieve a benefit to our socieity that is significant enough to justify allowing the seriously injured and their families to be second class citizens in our Courts of law? So, someone please explain---what is the benefit and where is the proof?