Nearly a year ago, a 2-year-old little girl was rushed to the emergency room after developing a fever, weakness, skin discoloration, and bruising on her right cheek. As her parents waited for their daughter to be examined by a doctor, the child’s conditioned worsened. She could hardly walk and the bruising eventually covered the whole side of her face and ear. Two hours later, the child could not stand up. Hospital personnel told the couple that the child most likely had a virus and a rash, and asked them to wait. After nearly five hours, the toddler went limp; her father bypassed the nurse’s station and went into the ER. Blood tests showed the little girl’s liver was failing; she was transported to a nearby hospital where she was diagnosed with a strep A infection, known as a “flesh eating bacteria.” When the child went into toxic shock, she was transferred to another hospital where she was placed on life support and blood pressure medications to help her heart. While doctors managed to save the child, the lack of oxygen to her limbs resulted in the amputation of her feet, left hand and part of her right hand.
Medical expenses have been overwhelming and the child continues to receive physical and occupational therapy. She will need expensive medications, custom prosthetics, special garments to cover her limbs and wheelchairs for the rest of her life. Although the insurance company has paid for much of her care, the family is still left with hundreds of thousands of dollars in bills. Neither parent has been able to work full time since their daughter became ill; they also care for two other children. The child requires 24-hour-care for the rest of her life; she will never have a normal childhood.
Her parents received settled a $10 million malpractice settlement with the first hospital and ER staff; the hospital will pay $9 million, and the Emergency Physicians Medical Group of Sacramento will pay $1 million.
Under a 35-year-old California law, this family is restricted to a $250,000 cap on pain and suffering. That’s right, a lifetime of missing three limbs and the most she will receive for pain and suffering is $250,000. Assuming the average life expectancy is 65 years, the child will receive approximately $11/day (63 years of projected life from the day her ordeal began times 365 days per year). That is what you get when you sign on for “tort reform;” immunity and protection for those that are negligent: Inadequate compensation for their victims.
The US Chamber of Commerce and other “tort reformers” often call multi-million dollar recoveries “jackpot justice”. This little catch phrase suggests that people are being handed millions of dollars in what they call "frivolous cases". Does this case sound like “jackpot justice” to you? What kind of life will this little girl experience when she can’t run and play with other children? Or write her name? Or dance?
To be paid $10 million within one year is a compliment to the hospital; they did not deny, delay, and defend, but it doesn’t mean the results are outstanding. This child has lost her arm, the fingers on her left hand, and both legs. The things she could do before by herself – eating, pulling up her pants, sitting in a regular chair at the kitchen table, turning the pages of a book – she can no longer do. She will never walk again; she can’t climb, jump, or swing like her brothers. She will live her entire life needing 24-hour care. Night time is the worst; she often sobs from “"phantom pain"; pain in the area of her missing limbs. To familiarize yourself with a day in the life of a victim compensated $10 million for the negligence of someone else, click here. The slideshow presents "real" photos depicting the aftermath of serious medical neglect and how it can change the life of a vibrant child, forever.
Count the things this child will never experience, things that all of us take for granted, every day. Life as most of us know it is gone forever. This case is an example of what has to happen to a person for the legal system to pay compensation of this size. Is it enough for past, present, and future expenses? Consider this: The medical bills to date have exceeded $4,100,000. The hospital that performed the amputations has assessed nearly $4 million in charges, including $275,519 for drugs, $82,672 for the operating room and $20,476 for anesthesia. The family also needed to invest in therapy equipment and specialized toys, as well as items such as a high chair, diapers and baby wipes, things their little girl outgrew before she became ill. As she gets older, she will need more surgeries. She may require a power wheelchair at a cost of around $30,000. The family’s lawyer said the lifetime costs of her care could top $38 million. What happens when she runs out of money? You, the taxpayers, will carry the burden; public assistance will, obviously, have to pick up the difference. Why? Because “tort reform” shifts the burdens of responsibility to the victims and taxpayers and protects the wrongdoers. Why should we, the taxpayer, and she, the victim, bear this huge financial burden?
Tort reform is not about ‘lawsuit abuse’ or ‘jackpot justice’. It is not about ‘frivolous’ lawsuits. It is about capping recoveries in serious cases, where serious injuries have resulted from serious breaches of conduct. There is no such thing as ‘jackpot justice’; I don’t know a single seriously injured plaintiff who wouldn’t trade the money he/she received from some breach of conduct, care or safety for a return to good health. It is the victims of medical negligence who suffer the most; why do I constantly encounter politicians who wish to protect the corporate and/or medical perpetrators, rather than the seriously injured victims? This is how some politicians protect their constituents? Here? In America? Say it isn’t so!
Damage caps are unconstitutional, unjust, and unfair. Large hospitals have the means to cut costs and take risks with patient’s lives because damages caps make it affordable for them to do so; $250,000 is insignificant to them. Negligence can cause critical injuries; critical injuries and permanent disabilities have life-long, costly consequences. California’s 35-year-old cap on pain and suffering needs to be abolished; damage caps all over the country need to be abolished. Nearly 30 states have laws in place that limit damages recovery to seriously injured/disabled people. As citizens of this country, we have the power to rise up and make a change for justice.
Do damage caps exist in your state or are they being proposed? It is time to stand up for your rights. It is time that the US Chamber of Commerce, corporations, insurance companies, and other tort reform advocates stop lying to the American people. Shielding corporations and government entities from liability or damages is not a solution. Spending more money improving safety and preventing injury would result in fewer lawsuits. Start there. Stop blaming the lawyers who fight for safety; instead help reduce lawsuits by using your power and money to improve safety rather than shamelessly trying to reduce compensation to victims. Stop using phrases like ‘lawsuit abuse’, ‘jackpot justice’, ‘junk lawsuits’ and the like and stop connecting such rhetoric to seriously injured and disabled people who, through no fault of their own, find themselves struggling to survive, physically and financially. These phrases and concepts are an insult to them; all of them would trade any financial justice they might have received for a return to good health.
Citizens of the United States of America: Contact your local and state representatives; find out where they stand on issues of civil justice. If they stand with the tort reformers, vote for their opponents. This is about justice; it is about fairness; it is about you, your precious family members, your rights and theirs. Together, we can make a difference.
Mark Bello has thirty-three years experience as a trial lawyer and twelve years as an underwriter and situational analyst in the lawsuit funding industry. He is the owner and founder of Lawsuit Financial Corporation which helps provide cash flow solutions and consulting when necessities of life funding is needed during litigation. Bello is a Justice Pac member of the American Association for Justice, Sustaining and Justice Pac member of the Michigan Association for Justice, Business Associate of the Florida, Tennessee, and Colorado Associations for Justice, a member of the American Bar Association, the State Bar of Michigan and the Injury Board.
Attorney, certified civil mediator, and award-winning author of the Zachary Blake Betrayal Series. 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.