Unbeknown to most people, that is until they personally face the reality, is that many states have caps on the amount of damages an injured person can receive at trial. Supreme courts in Maryland and Georgia will soon decide whether the limits on noneconomic damages in medical malpractice cases are unconstitutional. In Virginia, a jury recently awarded $4 million to a woman whose heart condition was misdiagnosed by an emergency room physician. The condition could have been treated with medication only if it had been caught earlier. The Virginia medical damages cap reduced the award to $1.8 million.
The state caps have been enacted at the urging of the medical profession and insurance industry through their heavily-financed tort reform initiatives. The cap amounts vary from state to state, in large part due to the varied strength of the medical and insurance lobby in each state. Louisiana has medical malpractice limits of $500,000. Maryland limits recovery in general medical liability cases at $650,000 and wrongful death claims to $812,500. Georgia’s statute caps medical damages at $350,000. Illinois caps damages at $500,000. The question of constitutionality deals with whether the caps so infringe on a judge or jury’s power to determine appropriate damage awards that it violates the patient’s equal protection rights, especially for the severely injured.
As we nationally debate the rising cost of health care and how to increase access to health care to the millions of uninsured, we must be mindful of not doing so on the backs of the average citizen who already faces inadequate access to damage recovery by these state liability caps. We should strike a balance and begin making the health care providers and medical insurers do their share of reining in the soaring costs of health care and medical insurance as well, not just by slamming the door of the courthouse to innocent victims of medical malpractice.
Richard J. Arsenault, 2011
