March 25, 2012

Many U.S. states have enacted laws that place a cap (limit) on the amount of noneconomic damages (such as pain and suffering, mental anguish, disfigurement, etc.) that medical malpractice victims may recover from medical malpractice defendants who provided medical care that failed to meet the required minimum standard of care under the particular circumstances.

Even if an independent and unbiased medical malpractice jury heard all of the trial testimony of the parties and their expert and factual witnesses, thoroughly considered and properly analyzed all of the  evidence introduced during trial, and exhaustively discussed and evaluated the entire medical malpractice claims and defenses before rendering its solemn verdict in favor of the medical malpractice victim, if the amount of the verdict for noneconomic damages is above the arbitrary cap of which the jurors were not even aware, the jury’s verdict in excess of the cap would be rendered impotent.

A recent compelling situation involving noneconomic damages unrelated to medical malpractice cases sheds some light on the unfairness and arbitrariness of caps on noneconomic damages.

A 50-year-old man in Louisiana spent almost 30 years (29 years and 11 months) in prison for the alleged crime of aggravated rape before DNA testing that was not available when the man was originally found guilty determined unequivocally that the man was totally innocent of the crime. The man was finally released from prison on October, 21, 2011, after having had most of his life stolen from him by his wrongful conviction and incarceration. His long prison sentence also resulted in the man suffering from eye and foot problems; now that he has been released, he has no medical insurance coverage to address his medical problems.

A Louisiana judge who considered how much the wrongfully convicted man should receive in monetary compensation from Louisiana for his wrongful conviction and incarceration agreed on March 9, 2012 that the man should receive $747,916.67 plus $80,000.00 for educational and medical expenses.

However, a Louisiana law “caps” the amount that the man will receive to $250,000, even though Louisiana itself sets the rate of compensation for each year of wrongful incarceration at $25,000.00 per year. The $250,000 cap on the man’s compensation means that he will receive an average of $11,000.00 per year for each year he languished behind bars.

The day before the 50-year-old man appeared before the Louisiana judge, the same Louisiana judge ruled that three men who were wrongfully convicted in 1993 of killing an alleged crack dealer and spent almost 16 years in prison were each entitled to $250,000.00 in compensatory damages plus $80,000.00 in services.

The judge’s ruling in each of the four cases must still be approved by the Louisiana Legislature. Louisiana ranks second from the bottom of all U.S. states in the amount that it compensates individuals who were wrongfully convicted of crimes.


Once someone has been charged with a crime, has been wrongfully convicted of a crime, and has served part of a criminal sentence in prison for the crime he did not commit, the mental anguish and loss of freedom suffered by the wrongfully convicted can never be made right — the only available method to somehow and someway lessen the permanent wrong done to the wrongfully convicted is to provide him with a satisfactory level of monetary compensation that is just and fair.

Likewise, once an innocent victim of medical malpractice has begun to suffer from life-long pain and suffering and the loss of the enjoyment of his former life, the victim of medical malpractice can never be “made whole” (that is, put back into the position that he was in just prior to the devastating medical malpractice event) — the only available method to somehow and someway lessen the permanent wrong done to the medical malpractice victim is to provide him with a satisfactory level of monetary compensation that is just and fair.

Caps (limits) placed on the amount of noneconomic damages that a medical malpractice victim can recover from a medical malpractice wrongdoer are, by design, arbitrary inasmuch as the amount of the cap applies to everyone and for every injury without regard to the actual effect and extent of the noneconomic injuries suffered by medical malpractice victims.

By way of example, a 22-year-old formerly healthy and active woman who will suffer intractable pain for the rest of her life and will be sentenced to a life-long existence in a wheelchair due solely to the unacceptable and substandard medical care that her health care provider provided to her will be limited to the same cap on noneconomic damages as a terminally-ill patient in her 90s who suffered additional noneconomic damages as a result of medical malpractice. Since a 22-year-old would likely have a much longer life expectancy than a 90-year-old, and therefore the 22-year-old will suffer pain, anxiety, and mental anguish much longer than the 90-year-old as a result of the medical malpractice event that caused her permanent misery, how is it reasonable, fair, and just that both are subject to the same limit on noneconomic damages?

Caps on the amount of noneconomic damages that victims of medical malpractice may recover unfairly, inequitably, and unequally benefit the medical malpractice wrongdoers to the severe detriment of the medical malpractice victims. Never lose sight of the fact that the medical malpractice wrongdoer was in the sole position to provide the necessary and required medical care to the patient, which he represented to his patient he was capable of providing, and had he done so consistent with what his medical peers agree is the standard of care that must be followed under the circumstances, the medical malpractice victim would not have suffered the losses due to the medical malpractice event — the medical malpractice victim is an innocent victim, not having contributed to his own injuries and losses.

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