Back in August 2009, I wrote an Injury Board article entitled "Damage Caps in Medical Malpractice Cases: Unconstitutional?". In the article, I told the story of Stanley Stinnett who died as the result of a "series of medical mistakes" in a California hospital. After his widow settled with the hospital, the case went to trial against the doctor and the jury found in her favor, to the tune of $1.4 million in medical expenses and wages, and $6 million for pain and suffering. Because of California tort reform, Stanley’s widow was limited to a $250,000 recovery, $5.75 million less than the jury awarded. Most likely, after fees and costs, she received very little.
The article prompted 29 comments before comment was closed by InjuryBoard.com. Most of the comments were from lawyers, on both sides of the debate. That anyone would defend an artificial, $250,000, 30 year old cap, amazes me, but some of my colleagues on the defense side of this debate attempted to do so. To my dismay, not a single comment was made by a citizen/victim.
Today, I received an email from another California victim. This person was writing in response to this article that I had written almost one year ago about this travesty of a law, conceived 35 years ago. This person sent the email to me, privately, so, I presume that he/she prefers to remain anonomous. But the message should be shouted from every mountaintop in this country. Here is the email, with name and pertinent information removed:
Subject: a victim’s response
Body: All of the lawyers in the comment column are missing the point, and the practical application of this law. The cap law in CA makes it virtually impossible for a victim to find a legitimate attorney willing to take a med mal case. The cap of 250,000 means that the lawyers, by law, end up with 35-40% of the reward, which, if the case goes to trial, won’t even cover costs, to say the least. Those that do take cases encourage victims to settle, usually for 10-50% of the cap. The real problem here is that none of the bad doctors are ever weeded out! The hospital usually requires a hush clause, so not only does the victim’s family never get justice, they get a slap in the face with the fact that the doctors or medical professionals are still practicing! The state of CA might as well be China for all the transparency and accountability the medical profession has. My brilliant, 17-year-old died last year at the hands of a bad doctor (emphasis added). Actually, it was a very prestigious hospital and the doctors who were performing this outpatient, diagnostic procedure, a test, were not certified to be doing what they were doing. We have lawyers. They are good lawyers. They want to settle. Is your child’s soul only worth 50,000? Forget the lost wages for infants, teens and the elderly-if they weren’t working, the limit is wrongful death, at 250,000, IF you’re lucky. And how is it constitutional that a jury’s verdict is automatically overturned by a state law pushed through by the insurance companies 35 years ago so that they wouldn’t have to pay for the bad doctor’s mistakes? C’mon! Illinois overturned this law as unconstitutional earlier this year- and their caps were twice CA’s-it CAN be done! Get rid of this stinkin law! there are never any discussions about this law which include victim’s families. If there were, this law would have been overturned years ago. Most citizens have no idea this unconstitutional law exists.
I advised this person to contact the American Association for Justice, the Center for Justice and Democracy, and Public Justice. My emailer correctly points out that caps were ruled unconstitutional in Illinois and other states where similar legislation has been attempted. It is possible to reverse these types of restrictive statutes! These types of damage restrictions are clearly unconstitutional; they infringe on the purview of the judge and the jury and violate, at the very least, the 5th & 6th amendments of our Constitution. I advised the emailer that
"Corporate power and money often carry the day; sometimes, like in Illinois, they lose."
I suggested that he/she
"Channel your energy into fighting this inequity in the courts or in the legislature; if judges and/or legislators don’t agree, campaign to defeat them. That is the only way things will change".
America: You are one accident, one misdiagnosis, one dangerous drug, one bad product from becoming a victim yourself. If you or a loved one were maimed or killed by such an event, would you want your right to recovery restricted to an amount that netted you $50,000 or less? Wouldn’t you want the best attorneys around to be jumping at the chance to handle your case? But, this is the state of affairs in California. In California, current law makes fundamental fairness and due process impossible. But, you, as citizens of this country or of the state of California, have the power to throw these bums out. Find out where your legislators stand on issues of civil justice. If they stand with the tort reformers, vote for their opponents. Throw the bums out; are you listening Arnie?
Attorney, certified civil mediator, and award-winning author of the Zachary Blake Betrayal Series. Mark Bello is also a member of the State Bar of Michigan, a sustaining member of the Michigan Association for Justice, and a member of the American Association for Justice.