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Those of you who have read my posts at this location know that I am an outspoken critic of damage caps (aka "tort reform", aka "liability reform"). I believe that they are unconstitutional on several grounds, mostly because they deny a plaintiff full adjudication by a judge or jury of his/her peers. Here is a case that graphically illustrates the difference between a capped recovery and uncapped recovery.

In this case, a jury in St. Louis, Missouri awarded $6 million to DeWayne and Suzanne Blankenship, parents of 6 month old Dylan Blankenship, who died because a hospital failed to diagnose a bacterial infection. Appropriate reatment was delayed for too long, and the child died. Please read the details of the hospital’s neglgence in the attached article. Needless to say, the lawsuit filed in this case alleged that a misdiagnosis resulted in Dylan’s release from the hospital; the release prevented the boy from receiving proper treatment in time to save him.

The trial lasted one week and the hospital was found negligent for misdiagnosing Dylan’s blood infection. The family was awarded just over $6,000,000.00 by the jury. Missouri has a non-economic (pain and suffering) damage cap of $350,000. Another travesty of justice caused by tort reform? Well, in this case, no, because the lawsuit was filed before the 2005 law that created the cap came into being. Thus, if the verdict is sustained, it will not be affected by the cap.

Now, most advocates of liability reform say that its passage prevents "lawsuit abuse", "junk lawsuits" (a George Bush term), or "frivolous lawsuits". I continue to ask this question: How does a cap on the damages in serious lawsuits prevent the filing of frivolous ones? The answer, of course, is that it doesn’t. "Abuse", frivolous" and "junk" are just buzz words to get you to think that this type of "top-down" reform is necessary. If you buy into this nonsense, the insurance companies will make additional record profits and their executives will laugh at you for giving away your valuable rights. "Tort reform" was this country’s first example of another, now famous, catch phrase: "corporate bailout". If caps had been in place in the Blankenship case, the taxpayers of Missouri would have bailed out the hospital’s private liability carrier to the tune of $5.65 million. Is that justice? If you want to stop "frivolous" lawsuits, simply prove them to be frivolous and punish the lawyers who bring them. "Bottom-up" reform makes much more sense, doesn’t it? Why penalize grieving, innocent parents and compound the injustice they feel by devaluing their child’s life?

Most couples dream of the day they receive the ultimate blessing and confirmation of their love; most dream about having a baby, and afterwards, more, a family. Most cannot conceive, after the fulfillment of that dream, that it might turn into every parent’s worst nightmare, the loss of a child. When the loss is easily preventable, as this one seems to have been, the pain is unimaginable. Today, Missouri tort reform caps require negligent doctors who are proven to have caused or contributed to the deaths of innocent babies and children to pay $350,000 plus associated medical and other out of pocket expenses. You be the judge: A shattered family, a permanent scar on the souls of the parents, what’s that worth to you and your family?

I know what you’re thinking; no amount of money in the world can compensate you for the loss of your child. I acknowledge that the system isn’t perfect; justice is measured in monetary damages. You be the judge or jury: $6,000,000 or $350,000? The preventable, wrongful death of a child is like the worst kick in the guts of the unfortunate parents. Tort reform, damage caps, medical liability reform, whatever you want to call it, simply kicks them, hard, again. And for what? To reduce the liability premiums of the neglgent doctor or hospital and the payment obligations of their liability insurance companies. Legislatures around the country think that is a fair trade. The tort reformers now want to place these types of reforms into national legislation; they are attempting to link "liability reform" with "health care reform". You be the judge; what do you think?

Lawsuit Financial extends its profound sympathies to the Blankenship family.


  1. Gravatar for Mike Bryant

    The frivolous claim that caps stop bad claims is a big old lie. Nice work in pointing that out. Unfortunately, it takes injustices like you have here to point out the problems.

  2. Gravatar for Jim Hacking

    Thanks for the good post. I like your outlook and the wisdom you state on the stupidity of caps.

  3. I just got an 'anonymous' private email that informs me that even though the case was filed before the $350,000 cap came into being, apparently, there was a $600,000 cap in place at the time of the Blankenship filing. Thus, the family can only collect a maximum of $600,000. At either figure, caps minimize the value of human life and survivor suffering. The jury said $6 million and that should be the award in this case.

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