Arbitrary Caps On Damages: How Patients Are Victimized Twice For Medical Errors

Posted by Tom Culmo on July 13, 2010

In 2003, the insurance industry pushed for, and the Florida Legislature enacted, caps on the pain and suffering damages that a patient can recover when they are victims of medical negligence.  Specifically, Florida Statute §766.118 imposes a $500,000 cap on noneconomic damages recovered from physicians, and a $750,000 cap on claims against hospitals.

This industry crusade to limit damages which can be recovered by severely injured people, or by the families of patients who die from medical malpractice, has been successful in many states across the country.  These arbitrary caps have also been the subject of constitutional challenges in courts throughout the country.  In February of this year, the Supreme Court of Illinois struck down (pdf) a $500,000 cap on damages as to physicians and a $1,000,000 cap as to defendant hospitals.  Likewise, in March of this year, the Georgia Supreme Court ruled (pdf) that an arbitrary $350,000 cap on noneconomic damages was unconstitutional.  The courts agreed that by dictating a random and often, woefully inadequate, monetary limitation on what a patient can recover for medical negligence, these statutory caps violate two basic constitutional principles: 1) the right of access to the courts, and 2) the separation of powers between the legislature and the judiciary.  The Georgia Supreme Court summed it up well in its findings that the law at issue “undermines the jury’s basic function.”

In Florida, there have been – at the trial court level - multiple constitutional challenges to our own statutory caps.   While the Florida Supreme Court has not yet spoken on the interpretation or constitutionality of the law, the federal courts here have been faced with every constitutional argument against the caps from denial of access to the courts to a violation of the equal protection clause.  However, as articulated by the District Court for the Northern District of Florida last year, “the wisdom of the policy is of no concern as long as the legislation squares with the Constitution…”  Estate of McCall v. United States of America, 663 F. Supp.2d 1276 (N.D. Fla. 2009).

Eventually, Florida courts will be given the chance to address the inherent inequity in arbitrarily depriving catastrophically injured people - and the families who have lost loved ones – of compensation to provide a reasonable quality of life and the basic needs to enhance and improve what is often a shattered existence.  Many victims of medical errors suffer catastrophic disabilities, permanent brain damage, loss of ability to walk or talk, blindness, etc.  The cost of care and rehabilitation, the cost of rebuilding lives, and often – just the cost of maintaining a basic and decent quality of life - can be staggering.  However, faced with these caps, the people and families who need the most help can’t get it while the hospitals and providers responsible for their losses enjoy millions of dollars in profit every year.  Let's hope that our courts adhere to the Constitution and return the function of determining the value of claims to those best situated to evaluate them - our juries.

 

"Sovereign Immunity" for Private Emergency Rooms - A Bad Idea for Patients

Posted by Tom Culmo on July 06, 2010

Good news for patients….the Florida Legislature rejected the hospital industry’s attempt to extend “government immunity to private hospital emergency rooms and emergency room doctors…” Florida Senate Bill 1474 and House Bill 791.

Over 100,000 people die each year as a result of errors made in emergency rooms across the country.  Countless others are seriously injured and permanently disabled.  In cases of severe and disabling injuries caused by medical negligence, the economic loss to the patient can be staggering - often burdening the patient with millions of dollars in medical bills, future medical or attendant care, and lost wages or future loss of earnings due to the disability.  Claims to recover damages for the care, resources and considerable financial support necessitated by such medical errors - is the only way to: 1) ensure that the patient’s needs are met, and 2) hold the hospital accountable. 

“Sovereign immunity” for private emergency departments would essentially eliminate the patient's right to be compensated for these losses.  Under Florida law, "sovereign immunity" limits the amount that a State or local government has to pay when it negligently injures someone through the acts of its agents or employees.  The maximum judgment or recovery a patient could make is only $200,000, no matter how much the actual damages might be.  In order to recover a judgment or claim exceeding these “caps”, the injured person or their family has to seek approval from the Florida Legislature to pay the excess amount. So, for example, should an emergency department erroneously amputate the wrong limb, thereby causing a patient total and permanent disability and future losses in the multiple millions of dollars, the maximum recovery would be $200,000 absent legislative involvement.  

Legislators understood that extending governmental immunity to private emergency rooms would shift the high costs of medical malpractice from the private wrongdoers to State and local government and ultimately – the taxpayer.  They also accepted the concept that hospitals, owned by large corporations concerned with profits and the bottom line, would have much less incentive to ensure patient safety if not held accountable for their medical errors.

Stroke: When Hospitals Miss the "Golden Window"

Posted by Tom Culmo on June 29, 2010
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According to the 2010 Heart Disease & Stroke Statistics, every 40 seconds, someone in the U.S. has a stroke.  On average, someone dies from stroke every 4 minutes.  Hospital Emergency Rooms are the front line for stroke diagnosis and treatment.

A stroke is a medical emergency in which minutes matter.  The “golden window” for diagnosis and treatment of stroke has conventionally been 3 hours – from the last time the patient was symptom-free.  While there have been some advances in treating acute stroke such as the use of tPA (Tissue Plasminogen Activator) which quickly dissolves the blood clots obstructing blood flow to the brain, The National Institute of Health has only extended the treatment window to 4.5 hours within which tPA can be effective in treating stroke patients.  Thus, the significance of rapid diagnosis and treatment cannot be overstated.

But what if hospitals fall short?  Delay in diagnosis and treatment of stroke can have dire and even fatal consequences.  “Time lost is brain lost…” explains Dr. Jeffrey L. Saver, Professor of Neurology at the University of California in Los Angeles, and member of the advisory committee of ASA/AHA.  In fact, most major hospitals are now certified as Primary Stroke Centers by the Joint Commission for the Accreditation of Hospitals (JCAH), and accordingly, must comply with strict JCAH protocols and guidelines for rapid stroke treatment, including the presence of a multi-discipline “Acute Stroke Team” staffed 24 hours a day.  While recent public health initiatives have been aimed at shortening the delay in a patient getting to the hospital, the hospitals can and should be held accountable when their stroke team members fail to follow effective protocols which lead to delays in the diagnosis and treatment of the stroke patients who arrive in time to make a difference.