We hear a lot about tort reform these days. Tort reform tries to reduce the viability of tort lawsuits by enacting caps on the damages that can be recovered in such a lawsuit. Typically, damage caps limit the amount that can be recovered by a plaintiff for non-economic damages – the pain and suffering. Proponents of tort reform argue that the defendants in a lawsuit are the victims of our litigious society. But what you rarely hear about are the victims of tort reform damage caps.
I recently represented a family in a wrongful death case that shows the true victims of a tort reform damage caps.
Deandre was a 17 year old high school student. He played basketball and had aspirations of playing in college. He was the oldest of five children ranging in age from 17 to 2. The summer before Deandre’s senior year of high school, his mother surprised the family with a trip to Disney World.
While in Florida, Deandre had a severe asthma attack in the middle of the night. Deandre ran out of his asthma medication and was unable to get the asthma attack under control. The family rushed Deandre to the Emergency Room, the closest one of which was 50 minutes away. He was treated by an Emergency Room physician who administered medication. After Deandre showed improvement, he was discharged within 45 minutes with a prescription for more medication.
As the family arrived back to their hotel, Deandre began to have another more serious asthma attack. Because it was the middle of the night, the family had not had a chance to fill the prescription. Deandre’s mother and four younger siblings watched in horror as the second asthma attack left him gasping for air. He was unable to be treated in time and suffered severe brain damage as a result of lack of oxygen to the brain. He was declared brain dead and the family had to make the painful decision to take Deandre off life support.
No child should die of an asthma attack today. And, no family should have to watch helplessly as their son and brother suffocates before their eyes. After careful review of the medical records, our expert agreed. The ER doctor breached the standard of care, which states all asthma victims must be monitored for at least one hour after treatment to confirm the treatment was successful and to ensure no recurrence of asthma.
Florida has $150,000 damage cap for non-economic damages for cases against ER physicians. Economic damages are for medical bills and lost wages, but Deandre was a high school student – so he had no lost wages. Because of the cap, the only amount the family could recover for the death of their son and brother was $150,000 plus the charges for medical bills.
Because of the negligence of the ER physician, Deandre’s young life was cut short. He didn’t graduate from high school. He didn’t get his chance to play college basketball. His family had to watch him suffer. Then, they had to make the gut-wrenching decision to take him off life support. These are the true victims of tort reform.
Matt Casey is a Partner with Casey & Devoti, a St. Louis-based personal injury law firm. He handles a wide variety of personal injury cases, including car accidents, birth injuries, medical malpractice, product and premises liability, Workers’ Compensation, and wrongful death.
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5 Comments
Mark Bello
Matt: Terrible story, all the way around. The other very sad thing here is the lack of public comment or outrage generated by your post. I've been writing about the terrible consequences of tort reform for years. Sadly, it seems that the public just doesn't care, until, of course, something like this happens to one of them. My sympathies to your clients. Regards, Mark comments
jc
Matt, I am one of the occasional defendants forced to be dragged thru one of these malpractice suits. While your case is meritorious most are not. In fact only about 1 in 20 cases that reaches trial results in a verdict for the plaintiff. According to the Ohio Department of insurance, 80% of malpractice cases which are filed are dropped because they are frivolous!without caps on "pain & suffering" plaintiff attorneys would ask for outlandish sums of money with the hope of bullying innocent Doctors into unjustified settlements. Malpractice insurance premiums would sky rocket, as they did in Ohio, before tort reform. So who pays for those increased premiums---well like any business expense, they get passed on to patients in the form of higher medical fees and expenses.
OneMistake
Hello Matt,
I cant express how sorry I feel for your client's loss of a son and brother.
(Matt) JC, I understand now and quite frankly, always thought I understood this tort law in Florida. I saw it as you've stated; the only way to keep malpractice insurance down. This was good for everyone,right?
Well, Matt, I believe I was ill served at the same or nearby hospital. Beautiful interiors optimized to please those high end resort visitors in the Disney area.
Here's the twist to my side of tort reform:
As only God could have done, I met and love the man I live with, who happens to be a doctor.
It was through his zealous effort, (going through my medical records, sending me to one of tge finest specialists)to figure out what had happened to me. It was a year before we met that I spent 10 days in the hospital and have been disabled ever since.
With all that being said, even this mild manner, turn the other cheek man I'm with (who happens to be doctor and felt the sting of an unnecessary / justified suit.) He agrees without any doubt, I or my children deserve damages and compesation. He admittedly said it is unlikely I will live long enough to see the end of any suit.(I'm only in my 50's)
■TORT REFORM in Florida, has made even a clear and obvious error in medical negligence/malpractice less appealing than car injury claims.
Attorneys would rather not bother with it, seemingly, as long as you're still alive.
Date of discovery is only a little over 1 year. Date of malpractice at that hospital is within 3 years.
We both understand why tort reform came about and the necessity; however even being a doctor, feels the spirit of the law is not made clear enough in the language of the law itself.
Whereby, many will be unjustly served by it. As in my case, someone should be held responsible.
You've always heard there's 3 sides to every story. Well, this is the tort reform story.
jc
So let's admit that some doctors make mistakes and some plaintiff attorneys know nothing about malpractice suits. But the court system takes years to resolve even the simplest cases. It is a dysfunctional system poorly serving both doctors and patients. We need MEDICAL COURTS which could quickly resolve these complaints. Hey, we have mandatory arbitration for brokerage disputes, why not MEDICAL COURTS for alleged medical malpractice.
jc
Mark Bello---It is always interesting how you can have sympathy for a sad malpractice case, but no sympathy for an honest doc like me who got dragged thru a malpractice suit for 10 years because a patient did not get an aspirin! As I said, there are a lot of incompetent plaintiff attorneys out there too. Like the one who sued me for 6 years for a typographical mistake.
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