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Mark Bello
Mark Bello
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Tort Reform Caps Result in Double Tragedy

6 comments

This result in this medical malpractice/wrongful death lawsuit demonstrates the tragedy of tort reform. Although the plaintiff (a deceased victim’s mother) received a verdict for her daughter’s wrongful death, the award was unrealistically capped. Read on; you will see why this is a complete travesty of justice.

A Forty one year old woman went to the Emergency room of her local hospital, Christus St. Mary Hospital in Port Arthur. She wasn’t feeling well and needed help. She was treated and released; within hours of her release, she died of a heart attack. She left two young children and a grieving mother behind. Her mom took over raising the children and tried to manage the overwhelming grief and anger over her daughter’s death.

The mother contacted a skilled personal injury attorney who had the requisite experience in medical malpractice and the case was pursued through the expensive and complex litigation process, eventually going all the way to a jury trial. The jury found against hospital and the attending doctor and for the woman; it awarded a combined $1.3 million in wrongful death/medical malpractice damages to her mom and the two young children.

The award sounds pretty significant at first glance; $1.3 million for the death of a daughter and mother. Would any of us give our lives or the lives of our parents for that amount of money? But, it gets worse. In Texas, where the verdict was rendered, there are limitations on the amount of money a jury or judge can award for mental anguish, pain & suffering in medical malpractice cases. The award will be limited to $250,000 per defendant. Tort reform strikes again, and this time it punishes two young children and their grandmother who must raise them.

Of course, any award will assist the family in raising two children who lost their mother. In the long-term, can this amount assist with the extra bills that two little ones generate. Will be to assist the children in the future? Should there be in this type of situation? After all, the jury in this case found that the hospital and the attending doctor committed willful or wanton negligence.

We live in a country where the framers of the constitution created three distinct branches of government: The executive (President), the legislative (Congress), and the judicial (the courts and the jury system). Tort reform unconstitutionally permits a legislature (Texas in this case) to infringe upon the purview and domain of the judicial branch and dictate how much justice a wrongful death or medical malpractice victim can receive. And, it does this with an articifial damages cap that does not permit an evaluation of actual damages and will not deter future "willful or wanton negligence". It is not just unconstitutional, it is unjust, unfair and just plain wrong.

In a case like this where the waiting time seems to stretch out forever and a day, the family might have taken advantage of lawsuit funding. This funding, contingent upon the outcome of the case, might have assisted with the extra expense burden of child care along with other vital household bills and expenses.

Lawsuit funding is ideal for cases where a plaintiff needs a financial boost to help get through the long and drawn out litigation process. In this case, that would have meant all the way through a trial, jury verdict, and potential appeals. Without such an option for funding, desperate plaintiffs would be faced with have to consider settlement, too early, for too little. Lawsuit Financial, the pro-justice lawsuit funding company, would like to know what you think of this verdict and the actual outcome forced by Texas Tort Reform.

6 Comments

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  1. Mike Bryant says:
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    As you point out so well, this isn’t justice. There is no way that this case did a thing to prevent frivolous claims, what it did was reward frivolous defenses and cap the responsibility of those at fault. It’s important that you keep pointing this out.

  2. Jim O'Hare AIC AIS VP med mal claims says:
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    Was the entire $1.3 awarded for WD? Nothing for economics, loss of society etc? What can be collected and what was the fee?

    (The family can collect money damages to cover the loss of earnings that the victim would have made in his lifetime, death associated expenses (funerals, medical bills), pain and suffering, loss of companionship and, sometimes, punishment damages.)

    Sad case looks like one that should have settled. I wonder why it didnt.?? Did the hospital think that it was defensible ? Was the demand too high?

    Sad case but there has to be more to the story?

    Would you be ok with this verdict if the cap for WD was $650k? (times 2 defendants = $1.3 mil)

    regards Jim

  3. Mark Bello says:
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    Jim: No, no, no! I don’t believe that the legislative branch of government should infringe on the purview of the judicial branch. It is unconstitutional! And, you know, by now, how I feel about this. I am an advocate of no caps at all. You are just trying to get a rise out of me. Your previous suggestion about jury pools and peers has merit, consititutionally, but, as I indicated, is probably not workable in our legal system because of physician bias. But caps? NO, NO, a thousand times NO!

  4. Jim O'Hare AIC AIS VP med mal claims says:
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    So Mark – what you are basically saying is NO to caps? I think I got it. Humor me for a second.

    The legislative branch makes the laws that the judiciary applies. No infringement by the legislative to the judiciary, its the job despription. It is the check and balance. Caps were legislated, werent they? The judiciary got rid of them in Chicago. so who is infringing on whom?

    No objective cause of action is ever questioned. Why? – they are objective, can be held, measured, seen.

    I will leave this issue once and for all if you can tell me what objective tool we should use to measure pain and suffering. By the way, – What is the difference between the two? Don’t we suffer pain? Redundant? Is it a ruler ,a scale or bushel basket that we use to calculate the monetary value of pain? I guess it is just a gut feeling, guesswork, alot but not too much. Goofy!

    All other causes of action use math and science for measurement. If you can’t do it,neither can a juror. This is an honest question

    Satisfying subjectivity with objectivity is ludicrous and invisible. Pain is a subjective concept money is objective. Caps give credibility of measurement. ( a cap only for this one cause of action, sky is the limit otherwise !)

    please advise thanks Jim

  5. Mark Bello says:
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    Jim: I am not suggesting that the defense can’t argue math and science for measurement. I am not suggesting that such arguments for damages limitations can’t be made in the context of a trial. Counsel, in the judge’s sound discretion, in your cases, can use any reasonable “objective tool” he/she wants to use to measure pain and suffering. I am not restricting your use of objective measuring tools at trial in front of a judge or jury. I am opposing an attempt by business interests to take the decision-making away from the jury, in essence, telling the judicial branch that the standards of measurement are what YOU (pro-business interests) say they are. It eliminates our side’s chance to provide our version of the measuring tool. Common sense (and, often, insurance policy limits), after listening to sound, persuasive arguments from both sides, provides, more often than not, a reasonable cap on litigation outcome, both in the boardroom, courtroom and juryroom. Your side has the same persuasive access to juries that our side does. Why isn’t that enough for you? Aren’t your lawyers doing their jobs? Why do they need legislative assistance? Why all the lies about “lawsuit abuse” and caps to stop the “frivolous”? Why does the “frivolous” need a cap in the first instance? What you really want to do is cap the “serious”, then let the taxpayer be responsible for the uncompensated difference. Legislation can govern safety and conduct; it cannot trample on the constitution; that is where the judicial branch comes in and that is why certain legislation (like Illinois caps) is declared unconstitutional.

  6. Jim O'Hare AIC AIS VP med mal claimsj says:
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    Dear Mark : I asked a simple question. what time is it? you told me how to build a watch that doesnt work.

    My question is for anybody with a reasoned response for away to integrate a subjective concept and its monetary equivalent. You mention reasonable objective tool- Like what? My point is that there aren’t any.

    Common sense is your answer as an objective tool. If I set your cadillac on fire, we could objectively look on ebay or the newspaper to determine what I need to pay you to make you whole. The computer and Ebay are objective tools via common sense. It really really hurt alot = how much? That is my point.

    All objective causes of action, the sky is the limit. How many angels you can fit on the head of a pin? We need some goveners to prevent jurors from telling me that a million angels fit on that pinhead , when I know for a fact that 20 max is capacity..

    I am not getting the trampling of the constitution. What part is getting trampled?
    regards Jim