July 3, 2013

162017_132140396847214_292624_nOn June 13, 2013, a federal judge in Mississippi upheld as constitutional Mississippi’s $500,000 cap on non-economic damages in medical malpractice cases but harshly criticized the application of the cap in the case before him. As the judge stated in his Order, “All grief is not equal. All pain cannot be reduced to a one-size-fits-all sum. One cannot imagine what it is like to know that the doctor right in front of you, the one who is refusing to insert a chest tube into your body even as nurses beg her to provide that treatment, is causing you to die and killing your unborn baby as you are helpless to stop her. In Mississippi, though, one’s suffering at the hands of a health care provider is worth no more than half a million dollars, no matter how egregious, and no matter if your suffering leads to your death, your unborn child’s death, and leaves your children orphans. This is offensive.”

The federal judge’s Order further stated, “The standard of review requires doubts of a statute’s constitutionality to be resolved in favor of upholding the law … The undersigned obviously believes that Section 11-1-60(2)(a) has a discriminatory effect as to the plaintiff and her family, leaving them without adequate remedy for their very real, serious injuries. And there may be doubts as to the correctness of the legislature’s ostensible belief that capping non-economic damages lowers medical malpractice premiums; the parties presented no evidence on that point either way. But that is not enough. Doubts require upholding the statutory provision, and it cannot be said that the plaintiff has proven beyond a reasonable doubt that there is no possible rational basis for the legislature’s action.”

The Underlying Facts

According to the federal judge’s Order, “this is a medical negligence case where an emergency room physician employed by the United States of America refused to provide basic medical treatment to Tiara Clemons and her unborn, 30-week-old child Aubrey Anna, causing their deaths … Evidence at trial showed that before Tiara Clemons died, she “was ‘screaming from pain and very restless,’ . . . in obvious pain and distress,” and “was experiencing extreme anxiety and distress, accompanied by a feeling of suffocation and impending doom” … Tiara Clemons was dying and knew she was dying. As one expert put it, “Tiara’s death was a slow process, during which she was conscious and aware of what was going on around her, as well as conscious of her own mortality” … What stood between Tiara and her child’s survival and death was a simple procedure the emergency room physician would not perform even with instructions from the EMTs. What is worse is that Tiara was very pregnant. While her blood slowly filled the space occupied by her lung, drowning her, she must have known that her 30-week-old child was dying with her. The evidence, in fact, showed that her child Aubrey Anna suffocated to death in the womb. Aubrey Anna most likely died 15 minutes before she arrived at an appropriately-staffed hospital, where she was delivered stillborn. It is horrible to realize that those 15 minutes could easily have been made up for earlier in the day, were it not for the doctor’s willful inaction.”

Acknowledging that there was no excuse for the doctor’s “staggering incompetence,” the defendant admitted liability and the case proceeded to a bench trial on damages only … [the damages] award was grounded in the “evidence show[ing] that Tiara suffered tremendously, both physically and mentally, before dying”; that Aubrey Anna had suffocated to death in the womb; that plaintiff Kathy Clemons had forever lost the company of her daughter and her granddaughter; and that minor children Elona and Keontray Clemons had forever lost the comfort of their mother and sister … The Clemons family suffered a profound loss, the depths of which are unknowable and uniquely unfathomable. A greater horror could not be written by Stephen King or scripted by Clive Barker.”

Despite such, the federal judge was compelled to reduce the $5.45 million non-economic damages award to $1 million pursuant to Mississippi Code § 11-1-60(2)(a), which caps a plaintiff’s recovery of noneconomic damages in a medical negligence case at $500,000 per decedent.


Caps on noneconomic damages in personal injury cases, including medical malpractice cases, are unjust, unfair, discriminatory, and just plain wrong – caps are contrary to American values in every way possible and represent a subversion of what makes the United States a great and honorable country.

If you or a loved one suffered serious injuries or other harms in Mississippi or in another state in the U.S., you should promptly seek to consult with a Mississippi medical malpractice attorney or a medical malpractice attorney in your U.S. state who may investigate your possible medical malpractice claim for you and represent you in a medical malpractice lawsuit, if appropriate.

Click here to visit our website to be connected with Mississippi malpractice lawyers or malpractice lawyers in your state who may be willing to assist you with your medial malpractice claim. You may also contact us toll-free by calling 800-295-3959.

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