Tort reform keeps rearing its ugly head; here is yet another case where a plaintiff was denied full adjudication by a jury of his/her peers because of a legislative capped recovery.
A North Carolina jury awarded a woman more than $7.5 million, $3.24 million in economic losses and $4 million in non-economic damages (pain and suffering, emotional distress, etc.), in a medical malpractice lawsuit against Owen Drive Surgical Clinic of Fayetteville. Her husband, was awarded $300,000 for his loss of consortium.
According to the lawsuit, a surgeon of Owen Drive Surgical removed part of the woman’s colon in June 2010 because it had a potentially cancerous mass (that was later ruled benign). The lawsuit alleged that the surgeon made a mistake that left a leaking hole in the woman’s bowels which caused dangerous abdominal infections. Over the next four months, the woman endured lengthy hospital stays, a six-week coma and three more surgeries because of the infections, her lawyers said. It wasn’t until October 2010, that a colonoscopy revealed the leak. The woman continues to suffer and will need medical care for the rest of her life.
The defendant contended that the woman’s poor health following the surgery was from other causes and that the leak developed later, not as a result of the initial surgery. After a two-week trial, the jury awarded in favor of the plaintiff. But, the story doesn’t end there. The $4 million non-economic portion of the award was blocked by a tort reform law passed in 2011 that caps non-economic damages at $500,000, regardless of the jury’s award. The only exception is cases were a jury finds that a doctor was reckless, grossly negligent, and fraudulent or acted with malice when he harmed the patient. In this case, the jurors ruled that the surgeon was negligent, but not reckless in the care provided. Since doctors weren’t found to be reckless, the $500,000 limit replaces the $4 million award. The couple’s attorney said the law is unclear whether the cap applies to the total non-economic damages, hence eliminating the husband’s compensation for loss of consortium. Despite believing the cap is unconstitutional, the couple does not plan to appeal. “To do so drags their ordeal out even longer by months and years,” said their attorney.
In the years leading up to the passing of the tort reform law, the number of medical malpractice cases filed in North Carolina had actually declined while the number of doctors practicing in the State continued to increase. Of the medical negligence cases filed, 96 percent were settled or dismissed before or during trial; 4 percent that actually went to a verdict resulted in favor of the defendant. From 2006 to 2010, only 57 malpractice cases resulted in a plaintiff’s verdict, with an average jury award of $302,600.These facts are not limited to North Carolina.
The idea that tort reform is good for the “people” is a farce. It has always been about granting blanket immunity to corporate and insurance interests, depriving individual citizens of their right to a trial by jury, one of the most fundamental of our constitutional rights. Capping damages is a direct attack on those rights. Jurors, after thoughtful consideration of the evidence presented to them, should have the freedom to award damages based upon actual physical and emotional harm suffered by the victim. Taking away the rights of injured patients and shielding corporations from liability or damages will do nothing to improve health care or safety. On the contrary, tort reform makes all of us less safe. Shouldn’t a person be monetarily compensated for the loss of a loved one or for being stripped of the quality of life that prevailed before the negligence occurred?
It is grossly hypocritical when tort reform advocates toss around the word “greed” in defense of their positions. Is it “greedy” to seek justice when you have suffered a serious injury or lost a loved one due to the negligence of someone else? Or, is it “greedy” for rich and powerful insurance companies or large corporations to shirk responsibility and use bought and paid for legislators to pass anti-citizen legislation that allows them to become richer and more powerful on the backs of the injured and disabled? When we allow these powerful corporations to avoid accountability, the cost of harm is redistributed from the wrongdoer to the taxpayers in the form of entitlement programs such as Medicare and Medicaid. Is that what you want as a taxpayer? Why should we, the taxpayers, be, first, forced to give up a fundamental right, and, second, forced to bail out negligent wrongdoers?
It is time we stop sacrificing our rights at the throne of the big business and insurance companies. The Constitution clearly guarantees the right to a trial by jury to all citizens under the 7th Amendment. Legislation manipulation our judicial system on behalf of insurance and corporate lobbyists puts all of us at a great disadvantage. Citizens have the ultimate power, the power of the VOTE. Let’s bring back 7th Amendment rights that were handed down by our forefathers; it is time to recapture the promise of America.
Experienced attorney, lawsuit funding expert, certified civil mediator, and award-winning author of the Zachary Blake Betrayal Series. The series consists of "Betrayal of Faith", "Betrayal of Justice", and "Betrayal in Blue", with a fourth book due out in 2019. You can learn more about these topical political, legal thrillers at markmbello.com. Mark Bello is also a member of the State Bar of Michigan, a sustaining member of the Michigan Association for Justice, and a member of the American Association for Justice.