Medical Malpractice Caps on Verdicts Leaves Patients in the Cold

The state of South Dakota has imposed a medical malpractice cap that leaves many who are injured or killed without a remedy. It was reported recently that a young woman who brought herself to a hospital in Sioux Falls, S.D., because she was carrying a dead fetus for removal from her uterus found things going from bad to worse.

The hospital did a procedure to remove the fetus, but things in the recovery room left the woman in shock. The doctor who examined her did not notice that the first doctor who removed the fetus had perforated her uterus during the procedure. She was literally bleeding to death.

A nurse eventually noticed that something was wrong and rushed the woman back to the operating room where the doctors performed emergency surgery to remove her uterus. She survived the ordeal, but lost the ability to have children.

This young woman, who came from a family of 8 brothers and 2 sisters, had always dreamed of having a large family, but that came to an end because of the medical negligence in her case.

Because of the botched procedures, the woman sought justice by trying to find a lawyer to take her case. Lawyers in South Dakota regularly turn down medical malpractice cases that are viable on the facts because the odds are stacked against them when it comes to juries. A law passed by the South Dakota legislature also is a deterrent. The law in question capped non-economic damages in medical malpractice cases at $500,000. It did not include in inflationary increase. If there was an inflationary adjustment, the cap would be more than $2 million today.

It is well-known and a fact that bringing a medical malpractice lawsuit anywhere is a very costly endeavor. The cases are taken on a contingency basis and lawyers have to be prepared for a long struggle to prepare their cases appropriately for trial and expect to spend hundreds and thousands of dollars in time, expert witnesses and other litigation costs.

Because of the way South Dakota has capped damages, lawyers regularly turn down viable and egregious medical malpractice cases. At the same time, the medical association in South Dakota believes that caps deter frivolous medical negligence lawsuits. The idea that a lawyer would take on a “frivolous case” in medical malpractice is ludicrous. It is literally throwing money away thinking that an unworthy case will bear fruit. It won’t.

According to a recent article in the Chicago Daily Law Bulletin, about 30 states have laws that restrict plaintiffs in non-economic losses. Non-economic losses include awards for pain and suffering, emotional distress, loss of companionship and other subjective type injuries. A number of states have invalidated on constitutional basis medical malpractice caps.

Not only is it ridiculous to believe that lawyers take on frivolous medical malpractice cases, but it is also true that only 2-3% of people injured by medical mistakes ever seek compensation. In addition, other studies have shown that caps on awards and medical malpractice do not affect the supply of doctors or control health costs. It is also argued that caps on medical malpractice cases are unreasonable considering there are no caps on other kinds of cases. It protects only a privileged class of people — doctors, nurses and hospitals that aren’t held to the same standard as other businesses. There is no cap, for example, on truck accident cases.

It seems that the argument of our medical malpractice caps on non-economic damages is an argument that would continue among the professions going forward. Illinois has three times found caps on medical malpractice lawsuits to be unconstitutional. There are no enforceable caps on medical negligence cases in Illinois.

Kreisman Law Offices has been handling medical malpractice lawsuits for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 38 years in and around Chicago, Cook County and its surrounding areas, including Morton Grove, Niles, Winnetka, Wilmette, Winfield, Western Springs, Hinsdale, Wheaton, Hoffman Estates, Joliet, Waukegan, Aurora, Romeoville, Bolingbrook, Melrose Park, Midlothian, Naperville and Evanston, Ill.

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