Caps in Cases of Medical Malpractice and Wrongful Death

The debate about caps in personal injury law has been an ongoing issue of contention between legal and medical communities and the public for many years.

2013-03-29

KANSAS CITY, MO, March 29, 2013 (Press-News.org) The debate about caps in personal injury law has been an ongoing issue of contention between legal and medical communities and the public for many years. Before we can discuss the ramifications of caps, let's first explore what caps are.

Caps are tort reforms (proposed changes in our civil justice system relating to personal injury claims) that limit the amount of non-economic compensation recoverable in specific lawsuits. In Missouri, the debate over caps has been related mainly to medical malpractice and wrongful death (as a result of medical malpractice) suits.

Medical malpractice caps, which were found unconstitutional by the Missouri Supreme Court in 2012 (and therefore eliminated), limit non economic damages that are recoverable by injured people who were the victims of medical malpractice. Though malpractice caps were overturned in 2012, a debate is currently taking place as to whether to re-instate them in Missouri. If the caps are re-instated, someone receiving a serious injury from medical malpractice, such as paralysis, scarring and disfigurement, brain injury, loss of limb, or a disabling head, neck or back injury, can be seriously limited in the amount of money they can collect from the wrongdoer.

Caps limit the amount of non economic damage recoverable in the lawsuits to which they are applied. Economic damages refer to such things as medical bills and lost wages, and are only limited by the sum total of these costs, past and future. Non economic damages refer to what is commonly thought of as "pain and suffering" and "permanency" or compensation otherwise not related to easily quantifiable figures and can include an array of other non-economic or non-pecuniary losses. In Missouri, caps applied to medical malpractice until 2012 yet still apply to cases of wrongful death resulting from medical malpractice because wrongful death claims have their own cap that has not been found unconstitutional and thus, is still in effect.

The intention of caps are to discourage what are considered frivolous lawsuits, which are suits that have no merit but can scare the other side into settling or can improperly inflame a jury into awarding an unjust sum. The reality is that this more often works in reverse. That is, caps increase the occurrence of people not pursuing valid medical malpractice claims because the limited recovery will not justify the enormous expenditure of time and money to pursue a medical malpractice case. Thus, many injured people are left without recourse in the courts and have to bare the expenses and losses associated with their injuries on their own. It is not uncommon for the attorney of an injured person to have to advance $50,000 or more in litigation or lawsuit expenses to pursue a medical malpractice case. This includes the expense of finding another doctor to testify that medical malpractice occurred and further that it contributed to their injuries. This is a prerequisite to proceeding with a medical malpractice case. Since a medical malpractice case requires another doctor to testify that there was medical malpractice, it seems highly unlikely a medical malpractice case would be frivolous.

Thus, there is much more opposition to caps by Missouri personal injury attorneys than there is support. It seems that those who are informed about the true facts pertaining to medical malpractice cases and have a concern for injured patients receiving just compensation support the removal of caps.

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