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Birth Injury Family Cannot Recover Because of Overbroad “Reform” Legislation

Birth injury lawsuits are frequently under attack by those who routinely blame the civil justice system for virtually every ill that befalls the country. Like other medical malpractice lawsuits, those involving preventable birth injuries can be affected when states and localities pass so-called “tort reform” measure. Damage caps are probably the most well-known tort reform measure. These caps would impose arbitrarily limits on what a plaintiff in one of these cases could recover-regardless of what the impartial jury found was appropriate after hearing all the evidence in the case.

Beyond damage caps, there are many other potential “tort reform” efforts which have been suggested, all in an effort to make it harder for medical malpractice victims to recover for their losses. For example, our Chicago birth injury lawyers read an interesting story this weekend in the Seattle PI that explained how one tort reform measure has worked to make it impossible for some victims of preventable birth injuries from getting their day in court.

The article shared the story a mother who lost her young son after her medical caregivers failed act appropriately during his birth. The mother in this case knew that she was a high-risk pregnancy, because she had a previous miscarriage. However, to help, she made special arrangements with high-risk pregnancy experts from Yale University. Yet, for reasons that are still unclear, the caregivers at the hospital where she gave birth failed to follow the explicit instructions provided to them by the Yale team that had been providing her treatment. They even hid from the mother the fact that the Yale doctors had suggested an alternative course of treatment. As a result of their egregious conduct, the child was born with an E. coli infection. He ultimately died from blood trouble less than two months after his birth.

Like any family would in that situation, the mother sought to hold the involved caregivers accountable for their conduct. But, the family has not been able to do so. That is because of a unique law that has been very strictly interpreted in the state requiring an expensive “doctor opinion letter” before a case like this can proceed. For one thing, these letters can cost thousands of dollars, making it prohibitive for many low-income families who do not have an attorney who will cover those costs. But, beyond the cost, these letters are also used by defendants to push legitimate claims out of court. That is because the law has been interpreted to require an opinion letter from a very small group of doctors who have the resume with the same background as the defendant. Judges have required the background of the doctor in the letters to be identical to that of the defendant (an often impossible task). The functional effect of this law is that many victims with legitimate claims are simply not able to file suit. It is an egregious abuse of power.

Fortunately, lawmakers on both sides of the aisle in this state have reported concern about this law. Many are in the process of trying to revert to the older system which actually provided fair access to the court system. Hopefully these measures succeed.

See Our Related Blog Posts:

It Remains Difficult For Some Victims to Receive Compensation For Their Harm

Respected National Think Tank Criticizes Damage Caps