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Here is yet another case where a plaintiff was denied full adjudication by a jury of his/her peers because of a legislative capped recovery. The family of Hector Alvarez was awarded $1.25 million in a medical malpractice case against Dr. William J. Dunwood, III a radiologist at Inova HealthPlex in Alexandria, VA.

On July 6, 2006, Mr. Alvarez experienced chest pains and trouble swallowing after taking a bite of steak. He went to Inova HealthPlex where he was put through several tests before being diagnosed with a hiatal hernia. He was sent home with medication, but soon returned to the hospital when the pain did not subside. The next day a surgeon discovered that Mr. Alvarez actually had a perforated esophagus from the piece of steak becoming lodged in his throat. He was rushed into surgery to repair the tear, but not before he suffered cardiac arrest. There was difficulty resuscitating Alvarez and he suffered irreparable brain damage. The surgery was not able to be performed. Mr. Alvarez subsequently died on July 17, 2006. Had Mr. Alvarez not been misdiagnosed, appropriate treatment would not have been delayed and he would be with his family today.

The result of this medical malpractice/wrongful death lawsuit demonstrates the tragedy of tort reform. The jury awarded the family $3 million, but due to Virginia caps on medical malpractice awards, the verdict was reduced to $1.2 million. While the award may sound significant, a man is forever lost to his family and a jury decided the value of his life to his family. Why does a selfish legislature get to play God here?

Does the general public realize the impact of caps on everyday people. Tort reform provides a corporate bailout to rich and powerful insurance companies and other industries, and punishes everyone else. Those who must deal with the loss of a loved one for the rest of their lives suffer the most. The taxpayers pick up the balance of a burden that should fall on the insurance company that accepted the risk. It is unconstitutional, unjust, and just plain wrong.

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  1. Gravatar for Jim O'Hare AIC AIS VP med mal claims
    Jim O'Hare AIC AIS VP med mal claims

    A very sad case that is w/o argument.

    I am sure that we can agree that Neither $1.2 million dollars nor $3.0 brings Mr. Alvarez back to his family. The correct answer is that there is no amount of money to measure the loss to this family, Right?

    If you agree with the above statement, this is why a cap is needed. If you dont agree, what equation do you use to determine the value of this case? The bigger number is better is not a real answer.

    How much insurance was available for indemnity? Could the $3 mil have been collected anyway?

    regards Jim

  2. Gravatar for Jon Lewis

    In Alabama, juries are not told the defendant even has insurance, much less the amount. Shouldn't the jury be able to have that information? What if Mr. Alvarez's income was $150,000/year and he was 40 years old. That's approximately a 25 year work life expectancy which would equal the present value of $3.75 million. That doesn't even include the pain and suffering the family must endure because they no longer have their father/husband.

    You're right, there is no value that can be placed on it, but our laws require us to place a value on it for the compensation. The jury did that in this case. These cases and laws are not some fiction. They have been in place for over 100 years. We can only compensate for negligence/wantonness with money. This is why we have insurance. If we don't want the system to work this way, we don't need insurance. Let's see what the insurance companies would say about that.

    I heard a story once about a meeting held in Florida to discuss these malpractice claims. A trial attorney stood up and said, "Why don't we just give doctor's immunity from suits?" You know who responded? An insurance executive. What did he say? "Oh, we can't do that." Why not? It would destroy them. Doctors would no longer need insurance.

    Your question is more of a philosophical one with respect to what the law should be. Caps are decided by legislators and lobbyists to take the power away from the juries and the people. The larger corporations want to control the system so they can budget for their errors instead of trying to prevent their errors.

  3. For me, part of the equation is to require the company that accepted the risk (the insurance company) to be responsible for the outcome. If a person is catastrophically hurt or killed in a tort reformed state, the taxpayer ends up being saddled with the bulk of the burden instead of the insurance company, which profited from the premiums it received to insure the risk. That is, simply, not right

  4. Gravatar for Jim O'Hare AIC AIS VP med mal claims
    Jim O'Hare AIC AIS VP med mal claims

    Jon- thanks for your repsonse. I am not for caps on damages that can be measured, as per the equation in your response. I refer only to measuring pain and it's folly. What if Mr Alvarez was 60 earning $15k/yr? Does your opinion change? Negligence connected to measurable damages , compensated by money, makes sense to me. No quarrel.

    All docs should have insurance to be able to practice - PERIOD. I need it to drive, but docs dont and can work in some patients brain!

    Errors cant be prevented, but it is a nice thought. In my career I have 18 different kinds of medication errors. Wrong sided surgeries persist despite lessons taught in Kindergarten- left and right. Fatigue, communication and staffing cause most of the cases. Put the money there, but errors cant be eradicated.

    It is not about the power to the people or the jurors. My question is simple- How much does pain weigh? It has value but not infinity.

    Mark - do you want the Insurance company to guarantee the care provided by the docs? Taxpayers get saddled if there is no life insurance, disability insurance, medical coverage or workers comp. Some personal responsibilty involved here. The insurance company isnt the bad guy, and we try not to insure those guys.

    regards Jim

  5. Gravatar for Jon Lewis

    I'm not talking about infinity. $3 million is not infinity to me. In addition, we have procedures in place with courts regarding jury verdicts which are inconsistent with the evidence.

    My opinion would change on the lost wage claim. In Alabama, we can't even ask for those damages in a wrongful death claim. We only get punitive damages. How is that for the family? All we get to ask is for the jury to punish the wrongdoer. If the doctor didn't mean for the patient to get hurt, i.e.: it was simple negligence, how do you get the jury to punish the doctor?

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