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The Fight for Med Mal Fairness – Caps Do Not Improve Access to Medical Care

Recent studies have shown that medical malpractice caps on non-economic damages exacerbate inequality in the judicial system. Certain plaintiffs are more likely to have a large portion of their award tied to non-economic damages. In particular, those without large annual incomes or who have injuries that cannot be quantified in dollar terms easily. The elderly, stay-at-home parents, and children are particularly affected.

Children harmed by negligence at birth may also be disproportionately affected by these caps. Obviously, by their very name, economic damage must be tied to quantifiable losses, like lost wages. Children who develop cerebral palsy, erbs palsy, or other injuries as a result of negligence may have a hard time identifying many economic losses, beyond basic medical costs and some potential lost wages. However, they obviously have suffered an immense loss in other terms–as they must live a life plagued by various challenges. Juries have long sought to honor those non-economic losses with proper compensation to account for the pain, suffering, and effect on the individual’s life.

Damage caps, however, take that option away from juries. This is one of many reasons why attorneys who work on malpractice cases, including birth injury matters, rally against these destructive “tort reform” measures.

State Ballot Measure & De-Bunked Arguments
It is under that umbrella that the current political battle in California should be understood. Several decades ago California became one of the first states to place an arbitrary cap on non-economic damages in medical malpractice cases. The limit was set at $250,000. That total has not changed since–not even to account for inflation. That means that in today’s dollars, the cap is equivalent to $65,000
Now there is a fight by some advocates to fix the problem and increase the cap to a more reasonable $1 million. To do so, supporters are collecting signatures to put the decision up for a statewide vote.

Expectedly, the usual suspects have rallied in opposition. The same tired claims are being made about increased medical costs and driving doctors out of the state. It is important to stand up to these de-bunked arguments.

For example, just last week the Center for Justice & Democracy (CJ&D) released a new report that emphasizes the lack of any grounding for the argument that keeping damage caps in place increases access to patient care.

Summarizing the findings, the study’s lead author explains, “”The suggestion that doctors might leave California or abandon certain specialties if the state’s brutal $250,000 cap on compensation for injured patients were repealed, let alone simply increased for inflation, has absolutely no support in the academic literature, government studies, or the actual experiences of other states.”

The study also cites research which shows that injury to women is often compensated exclusively through non-economic damages. For example, negligence which causes injury to sexual or reproductive organs or that results in the loss of a pregnancy must be compensated solely via damages not tied directly to economic loss. With these caps in place, these injuries may go largely uncompensated.

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