Medical Malpractice Non Economic Caps

Posted on January 22, 2010 by Greenberg & Bederman

Non-economic damages in a medical malpractice case are essentially a way for you to be compensated for elements of your injury that were not directly financially detrimental to you. It’s the idea that you have been forced to go through real pain and real hardship as the result of the negligence of a medical provider, and as such you should be financially compensated. For instance, if the mistake of a doctor required you to have a lengthy and painful recuperation, having the doctor pay for the cost of that recuperation would not be enough, mainly because if it hadn’t been for the initial mistake in the first place, you wouldn’t have had to go through the painful recuperation at all. Spouses of victims of medical malpractice can also be compensated for non-economic damages, particularly if the malpractice resulted in the death of the victim.

Thanks to years of false assumptions, many people actually support caps on non-economic damages. The doctors and insurance companies have done a good job convincing many in the public that non-economic damages are driving up medical malpractice premiums and lining lawyers pockets. These same theorists will continue believing in the false public persona until they themselves become injured and realize what “caps” actually mean, especially if the injury is severe and the consequences are long lasting. What medical malpractice caps do for the injury victim in some cases is cause the severely injured to not be able to receive the money that they will need for a comparatively normal life, much less a life of “luxury.”

If you get injured by a doctor in the state of Maryland, you still have the option to bring legal action against the doctor, surgeon, nurse, medical professional employee or medical facility who was responsible for your injuries. And while there are some caps on damages in Maryland, they are not nearly as draconian here as they are in California or Texas. In Maryland, the caps on non-economic medical malpractice damages are dependant of the sort of suit that is filed.

For instance, if a malpractice case occurs where the victim suffers injuries, the cap for non-economic damages is $680,000. But if a malpractice case occurs where the victim died, the cap for wrongful death medical malpractice cases rises to $850,000 in the event that there is more than one beneficiary.

We oppose the idea of caps for the same reason that we oppose mandatory minimum sentences. A legal verdict is not something that can be placed on a menu, as the circumstances for each case are different. Just as it makes no sense to automatically put a first time, low level drug offender behind bars for ten years, it also makes no sense to have an arbitrary limit on the amount of compensation that someone can receive if they become injured due to the negligence of someone else.

Believe it or not, Marylanders are somewhat fortunate in that the pain and suffering caps are higher than many states. A great number of states have an arbitrary cap with limits around $250,000. For all the discussions about how this helps doctors by keeping their insurance premiums down, it doesn’t do much to help the people who actually get injured, and there’s no real evidence that insurance premiums have declined accordingly.

We came across an article emphasizing this very premise in (of all places) Forbes Magazine. In an article by David A. Hyman, the consequences of these caps are laid bare:

The poor, the unemployed and the elderly are unable to find attorneys to help them in their cases. Since the only real compensation that these people can qualify for is non-economic damages (since they aren’t working or aren’t working in jobs that pay them a substantial salary,) most lawyers would end up losing money on taking a medical malpractice case of this sort due to the discovery process, which involves depositions and hiring expert witnesses.

We find this profoundly unfair. People who get injured due to the negligence of others are essentially being priced out of the legal system. This appears to be a system that works for some people, but not others, with the line of demarcation being the income level. This isn’t how the justice system is supposed to work. Your credit score or bank account should not be the determining factor as to whether or not you are treated fairly.

It is also a fallacy that it is medical malpractice lawsuits which are “forcing” insurance companies to raise their rates. The only thing that “forces” an insurance company to raise its rates is the insurance companies themselves. And considering that the number of malpractice lawsuits, judgments and settlements haven’t gone up significantly in decades, even when you adjust the numbers for inflation, the idea that insurance companies are losing money is a farfetched one at best.

While Maryland’s caps aren’t as draconian as those in California or Texas, it still means that people are not being properly compensated for severe or permanent injuries, to which we ask for what reason?

To learn more about medical malpractice issues, please read our medical malpractice page. To learn more about our medical malpractice lawyer, John Sellinger, please read Sellinger’s bio, or watch his video on youtube.

If you believe you are a victim of medical malpractice, please contact Greenberg & Bederman for a free medical malpractice legal consultation.
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Medical Malpractice Caps Difficulties

Posted on December 7, 2009 by Greenberg & Bederman

Recently in New York, a group of five veteran medical malpractice defense attorneys joined a Manhattan law firm. In the press release celebrating this acquisition of talent, we read the following:

"The rising cost of damage awards and settlements in medical malpractice cases continues to take a heavy toll… With these additions to our medical malpractice defense team, LeClairRyan is now in an even stronger position to help New York-area healthcare providers fight back."

They also mentioned a report from the Physicians Insurance Association of America, in which they claim that the amount of money given by jury awards is skyrocketing. All of this is new to us. Far be it from us to go against the numbers that the malpractice insurers themselves put together, but when we checked with the Department of Justice’s Bureau of Justice Statistics, we found that most medical malpractice cases are closed without any payout to the plaintiffs at all. And those jury awards that are supposed to be so high were only awarded in cases where there was a serious medical injury or a near death experience  of the patient. It’s hard to imagine how compensation could be “excessive” when a patient almost dies or will be spending the rest of his or her life with an injury or serious medical condition.

Whenever politicians or business advocacy groups discuss tort defense and tort reform, we always seem to hear a lot about “excessive jury awards.” They always trot out the McDonald’s case, or bring up some cases that slipped through the cracks of common sense as if they were everyday occurrences rather than the legal oddities that they are.

It is very easy for these groups to portray themselves as victims. The vast majority of people in America have had no reason to set foot in a courtroom in their lives, and have had no practical experience of how the legal system actually works. We live in a society where people have the right to seek recompense for their damages in court, but the burden of proving these damages lies solely on the plaintiff. This can be a very difficult thing to do, especially considering that defendants in civil cases already have so many built in advantages. We don’t have a system where anybody can walk in off the street and instantly win a million dollar verdict for nothing.

In the first place, thirty states have caps in place for non-economic damages. This means that you can only be compensated for your suffering up to a certain point. In Maryland, for instance, the cap for non-economicdamages in a medical malpractice case is $650,000. This means that aside from any compensation for lost wages or wages that you might have made had you been able to continue to work, the most that you can get for your pain and suffering is $650,000. In Virginia the medical malpractice cap is just a little under $2 million, but it’s a “hard cap.” This means that the most you can be compensated in any medical malpractice case is $2 million, which includes both economic and non-economic damages. But it should be mentioned that cases where victims actually reach that level of compensation are the exception and not the rule.

Another thing to consider is that medical malpractice cases themselves are rare. In a six month period in Washington, D.C, from January 1st to June 30, 2009, only six malpractice cases reached verdicts. One of these cases was actually filed in 2001, so that gives you an idea as to the delaying that the malpractice insurance company lawyers as a matter of routine. Out of these six cases, three of them went in favor of the plaintiffs, but it should be mentioned that the judgment for two of these cases were well below what the plaintiffs thought they deserved. One judgment was for $125,000 where the plaintiff was asking for $300,000, and the other was for $110,000 where the plaintiff was asking for $600,000.

This brings us to another set of advantages that defendants in injury cases have. In many cases, what the plaintiff thinks is reasonable and what the jury thinks is reasonable are two very different things. Even if the verdict goes in favor of the injury victim, there is no guarantee that the jury will award what was asked for. Plus there is the practice of remittitur, in which a judge can lower the amount of a judgment if he or she thinks the amount is “excessive.”

So, between the actual low amount of success, the tendency for awards to be low, the artificial caps that are placed on the amount of money that victims can receive, the tendencies of juries to make low judgments and the ability of judges to slash their verdicts in the event that they don’t, we have a very hard time understanding what else could possibly be done in order to make things “easier” for medical malpractice insurers and their clients. Perhaps making filing for damages against doctors illegal? How about penalizing those who bring suit against a doctor if they aren’t successful? Or how about making the restrictions on what victims of medical malpractice can receive even more strenuous? Maybe a flat rate of a few thousand dollars for any injury, no matter how severe?

These examples of how the deck has become more and more stacked over the years against victims of medical malpractice or medical negligence serve to remind you how important it is to have experienced legal counsel to represent you in your case. John Sellinger, Greenberg and Bederman’s premier medical malpractice attorney, has received the highest possible rating by Martindale Hubble for competence and ethics. He was voted by his peers into 2008, 2009, and 2010 Maryland and DC Superlawyers Magazine.

John Sellinger has successfully managed hundreds of medical malpractice cases in the Washington, D.C. area. A medical malpractice case could not be in better hands, whether it is a surgical error, wrong diagnosis or birth trauma case including cerebral palsy, or erb’s plasy.   If you or a loved one has been injured due to medical malpractice in Maryland, Virginia or Washington, D.C, contact Greenberg & Bederman for a  free medical malpractice legal consultation.
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