When a medical professional’s negligence or carelessness leads to the suffering of another, you would think that the innocent victim would be fairly and adequately compensated for the losses and harms he suffered. Not so, demand medical malpractice tort reformers. The reformers do not wish to discuss the unrelenting pain and permanent injury caused to victims of medical malpractice; they only insist upon limiting or eliminating the personal responsibility of the wrongdoers and protecting their financial interests.
Thirty eight years ago, California imposed a cap in the amount of $250,000 on the amount of noneconomic damages, such as pain and suffering, that people injured by medical malpractice in California could recover for their injuries, no matter the extent of the harm or the length of time the victim of medical malpractice would live with the harm. The cap has not been increased since it was established in 1975, despite the fact that the inflation-adjusted value of the $250,000 cap in 1975 dollars is now $1,070,074 ($250,000 in 1975 would be worth $58,407 in 2013).
Last year, various consumer protection groups came together to initiate an effort to have the cap increased. It did not take long for the doctors’ special interest groups and other health care lobbyist groups to loudly voice opposition to an increase in the cap. The California Medical Association, through its Associate Vice President of Public Affairs, called the effort to increase the California cap on noneconomic damages “an attack on physicians.” The President of the California Medical Association boldly cried, “It will increase meritless lawsuits, which will increase lawyer fees, increase health care costs, decrease access to care and won’t do anything to improve the quality of medical care.” (He did not mention the life-long pain and suffering experienced by many medical malpractice victims.)
But what about the rights of those severely harmed due to medical negligence? How can the opponents of the rights of injured patients justify their special privileged treatment that places their profits over the harms they caused to their patients? How are efforts to make physicians who carelessly injure their patients responsible for the full extent of the harms they unnecessarily caused “an attack on physicians”?
As Benjamin Franklin warned a long time ago, “Justice will not be served until those who are unaffected are as outraged as those who are.” It is incumbent upon all of us, whether presently a victim of medical malpractice or not, to rise up against any effort to restrict or eliminate our long-established and deeply-held right to be made whole when the wrongdoing of another needlessly causes us harm. Simply remaining silent when the rights of others are under attack because we are not now affected is not an option. Remaining silent when the rights of medical malpractice victims to be adequately and fully compensated for their injuries and losses caused by the negligence of a medical provider will soon harm all of us when government officials, bolstered by our silence on this issue, are emboldened to take away other rights that we consider important to us.
Any law that restricts the rights of innocent victims of medical malpractice to be fairly and justly compensated for their losses is an unjust and unwise law: “Law without justice is a wound without a cure” (William Scott Downey). As the renowned Justice Learned Hand warned, “If we are to keep our democracy, there must be one commandment: thou shalt not ration justice.”
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