Tort reform is unsafe and unconstitutional, yet it seems to be the topic on every politician’s agenda. This notion of frivolous lawsuits and juries awarding unjustified verdicts is simply untrue. This topic is popular because big business and insurance companies spend millions of dollars to convince everyone that the system is broken and that attorneys that represent injured Americans are at the heart of the problem. The U.S. Chamber of Commerce and most medical associations try to convince you that there is a need to limit the amount that juries can award. Doctors post signs in their offices protesting malpractice cases. These viral campaigns have been so successful that juries are reluctant to find against a doctor unless you can almost prove that the doctor intended to cause harm. If a doctor made a mistake and was negligent, many jurors have been convinced that the doctor should get a free pass and the patient should be awarded zero. They are unwilling to hold doctors responsible for their mistakes. Different rules of conduct are carved out to protect doctors when they make mistakes. As a trial attorney fighting for the rights of injured Americans, I know that the false and misleading campaign has poisoned juries throughout the country. There is not a single jury that has not bought into the idea that there are too many frivolous lawsuits and that large jury verdicts hurt all of us and drive up the cost of medical care. Again, not true.
I recently read a story about a verdict in California. This story was written by Michigan lawyer Mark Bello about the injustice of tort reform in a real life example and I am spreading the story so more people can take note of the harm that is inflicted by juries believing that it is wrong to sue a doctor or hospital and how it is wrong to award large verdicts. This case is real and the tragedy that occurred was preventable and avoidable if only safe medical care had been provided to this young patient. Yet, the critics of medical malpractice cases will be quick to suggest that the verdict is too large and unjust, until you read the entire story and realize the true cost of the mistakes and the limits that California (and other states including Ohio) place on the value of human pain and suffering and loss of normal enjoyment of life. Please read this story carefully and think about it seriously and remember the next time someone says to you there should be limits on what can be awarded by a jury and large verdicts hurt us and drive up the cost of medical care. Scream at the top of your lungs to anyone that says this and stop them in their tracks and ask them when is the last time they heard about a frivolous jury verdict in a medical malpractice case? Ask them if their ability to enjoy life and to care for themselves was taken away by carelessness would they be willing to accept $11/day for a lifetime of pain, suffering and disability like this case?
Nearly a year ago, a 2-year-old little girl was rushed to the emergency room after developing a fever, weakness, skin discoloration, and bruising on her right cheek. As her parents waited for their daughter to be examined by a doctor, the child’s condition worsened. She could hardly walk and the bruising eventually covered the whole side of her face and ear. Two hours later, the child could not stand up. Hospital personnel told the couple that the child most likely had a virus and a rash, and asked them to wait. After nearly five hours, the toddler went limp; her father bypassed the nurse’s station and went into the ER. Blood tests showed the little girl’s liver was failing; she was transported to a nearby hospital where she was diagnosed with a strep A infection, known as a “flesh eating bacteria.” When the child went into toxic shock, she was transferred to another hospital where she was placed on life support and blood pressure medications to help her heart. While doctors managed to save the child, the lack of oxygen to her limbs resulted in the amputation of her feet, left hand and part of her right hand.
Medical expenses have been overwhelming and the child continues to receive physical and occupational therapy. She will need expensive medications, custom prosthetics, special garments to cover her limbs and wheelchairs for the rest of her life. Although the insurance company has paid for much of her care, the family is still left with hundreds of thousands of dollars in bills. Neither parent has been able to work full-time since their daughter became ill; they also care for two other children. The child requires 24-hour-care for the rest of her life; she will never have a normal childhood.
Her parents received a $10 million malpractice settlement with the first hospital and ER staff; the hospital will pay $9 million, and the Emergency Physicians Medical Group of Sacramento will pay $1 million.
Under a 35-year-old California law, this family is restricted to a $250,000 cap on pain and suffering. That’s right, a lifetime of missing three limbs and the most she will receive for pain and suffering is $250,000. Assuming the average life expectancy is 65 years, the child will receive approximately $11/day (63 years of projected life from the day her ordeal began times 365 days per year). That is what you get when you sign on for “tort reform;” immunity and protection for those that are negligent: inadequate compensation for their victims.
This child has lost her arm, the fingers on her left hand, and both feet. The things she could do before by herself – eating, pulling up her pants, sitting in a regular chair at the kitchen table, turning the pages of a book – she can no longer do. She will never walk again; she can’t climb, jump, or swing like her brothers. She will live her entire life needing 24-hour care. Night time is the worst; she often sobs from “phantom pain;” pain in the area of her missing limbs.
Tort reform is not about ‘lawsuit abuse’ or ‘jackpot justice.’ It is not about ‘frivolous’ lawsuits. It is about capping recoveries in serious cases, where serious injuries have resulted from serious breaches of conduct. There is no such thing as ‘jackpot justice’; I don’t know a single seriously injured plaintiff who wouldn’t trade the money he/she received from some breach of conduct, care or safety for a return to good health. It is the victims of medical negligence who suffer the most; why do I constantly encounter politicians who wish to protect the corporate and/or medical perpetrators, rather than the seriously injured victims? This is how some politicians protect their constituents? Here? In America? Say it isn’t so!
Damage caps are unconstitutional, unjust, and unfair. Large hospitals have the means to cut costs and take risks with patient’s lives because damages caps make it affordable for them to do so; $250,000 is insignificant to them. Negligence can cause critical injuries; critical injuries and permanent disabilities have life-long, costly consequences. California’s 35-year-old cap on pain and suffering needs to be abolished; damage caps all over the country need to be abolished. Nearly 30 states have laws in place that limit damages recovery to seriously injured/disabled people. As citizens of this country, we have the power to rise up and make a change for justice
Damage caps exist in Ohio and this case could easily have been an Ohio case. It is time to stand up for your rights. It is time that the US Chamber of Commerce, corporations, insurance companies, and other tort reform advocates stop lying to the American people. Shielding corporations and government entities from liability or damages is not a solution. Spending more money improving safety and preventing injury would result in fewer lawsuits. Start there. Stop blaming the lawyers who fight for safety; instead help reduce lawsuits by using your power and money to improve safety rather than shamelessly trying to reduce compensation to victims. Stop using phrases like ‘lawsuit abuse,’ ‘jackpot justice,’ ‘junk lawsuits’ and the like and stop connecting such rhetoric to seriously injured and disabled people who, through no fault of their own, find themselves struggling to survive, physically and financially. These phrases and concepts are an insult to them; all of them would trade any financial justice they might have received for a return to good health.
The court system is about justice; it is about fairness; it is about you, your precious family members, your rights and theirs. The lawyers at Mishkind Kulwicki Law, like so many plaintiff trial attorneys, give their hearts and soles to try to protect families and to make sure that this case do