When reform means a loss of rights

By:  Lori T. Williams, Owner/Managing Attorney of Your Legal Resource, PLLC

I enjoyed reading an article in Crain’s Detroit Business, entitled “Benefits of changes in malpractice law still being disputed” by Jay Greene.  I thought Mr. Greene covered both sides of the issue well.  I became a lawyer in 1989, and experienced the legal realities of how tort reform drastically impacted injured parties in their right to file auto accident cases and medical malpractice actions the last two decades.

Mr. Greene’s article summed up the results of medical malpractice reform as follows: after nearly two decades since the reform there is ample evidence that premium rates and lawsuits are down, but whether overall costs have been contained or public safety adequately protected is still in dispute between the medical profession and attorneys who represent medically injured parties.

I’ll admit I side with the attorneys who represent the medically injured.  The article quoted Norman Tucker, a plaintiff personal injury attorney and partner at Sommers Schwartz, PC who stated: “The 1993 changes went too far. There is an element of anger with injured patients. I tell someone I think you have a case, but the cost does not justify the payouts. They feel it is a stupid system because they were injured and have lost wages and need to pay for their medical care.” 

Tucker went on to explain how the “caps” work in medical malpractice cases:

“Because of limitations on damage awards, a case with an estimated $350,000 in recovery value could cost $80,000 to prepare for trial and take three years to complete. Winning a case could net $270,000 minus $90,000 for the attorney fee with estimated overhead of $45,000. The attorney could earn $45,000 with the patient recovering only $180,000. These types of cases are not being taken anymore. If I lose, that comes out of my pocket. Meanwhile, the people who make errors have no incentives to make improvements. Incentable lawsuits cause all of us to do better, and it makes medical practitioners more responsible.” 

Plaintiff’s Attorney Brian McKeen, Founding Partner of McKeen & Associates PC, who also specializes in medical malpractice cases seems to agree with Tucker’s sentiments, when he stated “capping noneconomic damages does not discourage people from bringing frivolous suits. Other reforms like affidavit of merit — a statement from a medical expert that the case has merit — have done that.  You are punishing people who can bring legitimate damages but don’t have large economic damage claims. The cap on noneconomic damages should be repealed. Many patients and their families have been disenfranchised by the cap. It is hard for them to find a good attorney unless they have massive economic damages.” 

When there is medical error, but the cap on damages doesn’t make “business sense” for the attorneys to file an action on behalf of the injured party, that amounts to a loss of rights for the injured party.

The cap on damages adjusts annually based upon the consumer price index. Click here for the 2013 revised act for the Limitation on Non Economic Damages and Product Liability Determination on Economic Damages. The afore-mentioned revised statute caps medical malpractice recoveries on claims without certain permanent disabilities at $433,400 in 2013; the cap with certain permanent disabilities is set at $774,400 for 2013.   Lawyers and their clients are to refer back to MCL 600.1483(1) and 600.2946a(1) for what constitutes a disability.
 

600.1483 Claim for damages alleging medical malpractice; limitation on noneconomic damages; exceptions; itemizing damages into economic and noneconomic loss; “noneconomic loss” defined; adjusting limitations on noneconomic loss.

Sec. 1483.

(1) In a claim for damages alleging medical malpractice by or against a person or party, the total amount of damages for noneconomic loss recoverable by all plaintiffs, resulting from the medical malpractice of all defendants, shall not exceed $280,000.00 unless, as the result of the negligence of 1 or more of the defendants, 1 or more of the following exceptions apply as determined by the court pursuant to section 6304, in which case damages for noneconomic loss shall not exceed $500,000.00:

[editor's note: damages adjust annually in conjunction with the consumer price index.  Click here for the 2013 revised act for the Limitation on Non Economic Damages and Product Liability Determination on Economic Damages]

(a) The plaintiff is hemiplegic, paraplegic, or quadriplegic resulting in a total permanent functional loss of 1 or more limbs caused by 1 or more of the following:

(i) Injury to the brain.

(ii) Injury to the spinal cord.

(b) The plaintiff has permanently impaired cognitive capacity rendering him or her incapable of making independent, responsible life decisions and permanently incapable of independently performing the activities of normal, daily living.

(c) There has been permanent loss of or damage to a reproductive organ resulting in the inability to procreate.

(2) In awarding damages in an action alleging medical malpractice, the trier of fact shall itemize damages into damages for economic loss and damages for noneconomic loss.

(3) As used in this section, “noneconomic loss” means damages or loss due to pain, suffering, inconvenience, physical impairment, or physical disfigurement, loss of society and companionship, whether claimed under section 2922 or otherwise, loss of consortium, or other noneconomic loss.

(4) Beginning April 1, 1994, the state treasurer shall adjust the limitations on damages for noneconomic loss set forth in subsection (1) by amounts determined by the state treasurer at the end of each calendar year to reflect the cumulative annual percentage change in the consumer price index. As used in this subsection, “consumer price index” means the most comprehensive index of consumer prices available for this state from the bureau of labor statistics of the United States department of labor.

For an explanation of what constitutes a permanent disability in medical malpractice cases, see MCL 600.2946a below:

REVISED JUDICATURE ACT OF 1961 (EXCERPT)
Act 236 of 1961600.2946a Determination of damages; limitation.

Sec. 2946a.

(1) In an action for product liability, the total amount of damages for noneconomic loss shall not exceed $280,000.00, unless the defect in the product caused either the person’s death or permanent loss of a vital bodily function, in which case the total amount of damages for noneconomic loss shall not exceed $500,000.00. On the effective date of the amendatory act that added this section, the state treasurer shall adjust the limitations set forth in this subsection so that the limitations are equal to the limitations provided in section 1483. After that date, the state treasurer shall adjust the limitations set forth in this subsection at the end of each calendar year so that they continue to be equal to the limitations provided in section 1483.

(2) In awarding damages in a product liability action, the trier of fact shall itemize damages into economic and noneconomic losses. Neither the court nor counsel for a party shall inform the jury of the limitations under subsection (1). The court shall adjust an award of noneconomic loss to conform to the limitations under subsection (1).

(3) The limitation on damages under subsection (1) for death or permanent loss of a vital bodily function does not apply to a defendant if the trier of fact determines by a perponderance of the evidence that the death or loss was the result of the defendant’s gross negligence, or if the court finds that the matters stated in section 2949a are true.

(4) If damages for economic loss cannot readily be ascertained by the trier of fact, then the trier of fact shall calculate damages for economic loss based on an amount that is equal to the state average median family income as reported in the immediately preceding federal decennial census and adjusted by the state treasurer in the same manner as provided in subsection (1).

Points to Ponder and Share:

• What are your thoughts in the matter?  
   
• Do you feel that someone who is permanently disabled as a result of a doctor’s medical error should be limited in the amount of their recovery?

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Lori T. Williams is a 23 year attorney based in Birmingham, MI. She owns a legal referral and legal consulting business called Your Legal Resource, PLLC. She assists individuals and small businesses in need of legal advice or representation by connecting them with the right legal specialist for their situation. She also provides consulting services for attorneys and other professional service providers on how to generate more business through effective branding, marketing, networking, and by creating strategic partnerships. For more information, visit www.bestlegalresource.com.