Damage Caps in Nevada Going To State Supreme Court?
We’ve long held the opinion that so-called “damage caps” do nothing to drive down the costs of medicine. If that was the case, then surely the costs of medical care would have fallen precipitously in the states where there are caps in place. There has so far been no evidence that medical costs have gone down. The theory is that with liability caps in place, doctors will no longer be concerned about getting sued and will stop practicing “defensive medicine,” or performing unnecessary tests and procedures so that there is no chance of any diagnosis falling through the cracks. But practically speaking, doctors are still practicing medicine like they always have, regardless of whether or not they feel “protected” by damage caps.
When you think about it, the only people really “protected” by liability caps are the medical malpractice insurance companies. These insurance companies are the only ones who stand to gain by limiting the amount of non-economic damages that an injured patient can receive. After all, caps don’t prevent doctors from getting sued. They simply place a limit on the amount of money that the injured patients can receive. And the patients certainly don’t get anything positive out of the deal. Damage caps work under the erroneous assumption that any and all medical malpractice cases are the same, which means that as far as the courts are concerned, there is no difference between a patient who has to spend a few extra inconvenient days in the hospital and a patient who accidentally has the wrong limb taken off. Anything from a misdiagnosis to the death of an infant falls into a specific price range, between $0 and however much the cap is, which is usually in the neighborhood of $200,000.
Morally speaking, there are many things wrong with this concept. And there are more than a few examples as to how these caps exist for no other reason than the financial convenience of the insurance companies.
One example in particular is happening in Nevada right now. A doctor named Depak Disal runs an endoscopy clinic there, and it is alleged that his clinic caused a hepatitis outbreak which affected thousands of people all over Nevada. At issue is this question: Does the damage cap cover “people,” or “incidents?”
In other words, if it can be proven that Dr. Disal was responsible for “one” hepatitis outbreak, would this mean that his insurance company would be obliged to pay out the limit of the $350,000 damage cap only once? Would everyone who allegedly got hepatitis from Dr. Disal’s clinic be forced to share one capped judgment? Or would the cap apply to each individual person who contracted hepatitis? Would any of you like to take a guess as to which side of the argument Dr. Disal’s insurance company is on?
As strange as this argument seems, one court in Nevada actually agreed with the premise, but another judge ruled the exact opposite. So we expect the case to be ruled upon by the Nevada Supreme Court fairly soon. And if rulings in other states are any indication, it could be that damage caps in Nevada might be a thing of the past altogether.
Illinois and Georgia are two states where their respective Supreme Courts have ruled that caps on damages are unconstitutional, based on the grounds that they ignore the separation of powers that was written into the Constitution. In other words, damage caps lessen the ability of a judge or jury to rule effectively on a case. With damage caps, a judgment on a supposedly independent court case is essentially pre-determined by members of another branch, and that is absolutely against the premises laid out in Articles I, II and III.
While we most certainly agree with that on legal grounds, we also find it outrageous that state or federal legislators are allowed to assign market value to pain, suffering and emotional loss. We also can’t imagine that a hepatitis victim being eligible only for a “share” of a judgment rather than a separate judgment is in any way fair. Hopefully, the Nevada Supreme Court will do away with damage caps entirely, and the question of whether it was “one” incident or a few thousands separate incidents will be rendered moot.
Greenberg and Bederman is a medical malpractice injury law firm located in Silver Spring, Maryland. We are currently offering legal assistance to people in Maryland, Virginia and Washington, D.C. who have been injured due to medical negligence, misdiagnosis, violation of standard of care, or surgical errors. If you or a loved one has been hurt due to a doctor’s mistake, contact Greenberg and Bederman for a free medical malpractice legal consultation today.