Posts tagged with "caps"

Fourteen-year-old Aaron Edwards cannot walk or talk and needs 24/7 care because of hospital errors that left him severely disabled at birth.

When his mother was in labor, a nurse at Lee Memorial Hospital administered a drug to speed her labor and then forgot to stop the drug’s IV drip. That cut off baby Aaron’s air supply, causing lifelong disability.

Now a Florida jury has ordered that the hospital should pay $31 million to the teen’s family to pay for his care and to compensate for the disabilities he’s suffered. In spite of the ruling against it, Lee Memorial maintains that it did nothing wrong and that its staff acted properly; it has no plans to pay the full bill.

Many of the 10,000 Americans who successfully sue after being victims of medical errors could find themselves in the same boat – unable to collect enough from doctors and hospitals to even pay their legal fees, let alone make up for lost pay or extra treatment costs that result from health-care-caused injuries.

Caps Differ by State and County

“It does vary by state, but it is very common for individual states to have what’s called a ‘limited tort scheme’ or ‘limited waiver of immunity’ that establishes a very hard cap on the damages you can recover,” said Jim M. Perdue Jr., an attorney with Houston-based Perdue Kidd & Vickery.  “In Texas, our cap is $250,000 if it’s a state-owned hospital, $100,000 if it’s a county hospital.”

In Florida, the limit was $200,000 on public hospitals like Lee Memorial at the time that the jury ruled in favor of Edwards, who is a quadriplegic and can only communicate through a computer. That cap has since been raised to $300,000, and Edwards’ and others’ stories have prompted Florida legislators to consider raising it further, though no changes have yet been passed into law.

Reasoning for Limits on Recovered Damages

The reasons for these limits are two-fold:

• States have often capped damages on public hospitals to protect the public coffers. Lee Memorial Health is a taxpayer-owned hospital that cleared $65 million after expenses in 2010. Paying out $31 million on a single claim would have halved its profits and could have affected its ability to provide care for the poor and uninsured.
• Medical malpractice claims have also been blamed as one contributor to the nation’s skyrocketing health care costs, both because of large payouts and because those payouts have pushed up the cost of malpractice insurance to startling levels. Some physicians pay more than $200,000 per year for insurance.

A number of studies have shown that health care costs keep rising even with malpractice caps in place. And, hospitals in states that don’t have caps prove that it’s possible to stay in business even with the risk of big legal payouts – most obtain insurance to keep jury rulings from rendering them insolvent. According to some reports, Lee Memorial did not have insurance of this sort.

Financial Burden of Medical Liability Caps

Public Citizen, a nonprofit consumer advocacy group, issued a 2011 report in which it found that medical liability caps make care less available and more expensive – and prevent patients from being fully compensated for damage caused by bad doctors. Insurance companies and doctors are the ones who most benefit from malpractice caps, Public Citizen found.

Ironically, when people cannot expect payment to cover the cost of doctor-caused injuries, they may ultimately put a bigger financial burden on the health care system, attorney Perdue said. That’s because instead of receiving funds that would cover their post-injury medical costs, many are dashed into poverty by career-ending injuries and forced to rely on Medicaid or the emergency room for ongoing treatment.

This is the case with Aaron Edwards. Without the court-awarded funds, he will have to depend on Medicaid and Social Security Disability Payments to get by as he grows up.

There’s not much that most patients can do to protect themselves or to guarantee that they will be compensated if they’re victims of medical malpractice, attorney Perdue said. Many communities are only served by public hospitals, and malpractice payment limits apply to private hospitals in some areas. Meanwhile, seriously injured trauma patients don’t usually get to choose where they are taken even in areas where private and public hospitals do compete head-to-head.

When to Consider Litigation

Furthermore, it’s important to recognize that minor, non-life-altering errors do happen at even the best hospitals, and litigation is not always the best approach.

“Health care is not perfect,” Perdue said. “There are a variety of inconveniences and unfortunate things that occur. If anybody has suffered an event or an injury that is serious, they should never hesitate to call a lawyer and see what their rights are.”

In the meantime, some states are beginning to reconsider the caps they’ve placed on medical damages. Others, including Florida, are addressing challenges to malpractice payment limits on a case-by-case basis. A case currently before the Florida Supreme Court argues the constitutionality of damage caps, and legislators there are considering a bill that would pay Edwards family more than $30 million while leaving restrictions on future payments in place. That bill passed out of subcommittee on Feb. 17 and now awaits a vote by the state Senate’s Judiciary Committee.

By: Courtney Sherwood

–

At Maya Murphy, P.C., our experienced team of personal injury attorneys is dedicated to achieving the best results for individuals and their families and loved ones whose daily lives have been disrupted by injury.  Our personal injury attorneys assist clients in New York, Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, Westport, and throughout Fairfield County.

If you have any questions relating to a medical malpractice case, hospital negligence or error, a personal injury claim, or would like to schedule a free consultation, please contact Joseph Maya and the other experienced attorneys at our Westport office by phone at (203) 221-3100 or via e-mail at JMaya@Mayalaw.com.

In a wrongful birth suit, an Oregon couple has been awarded nearly $3 million to care for their daughter, after successfully arguing in court that they would have aborted her had they known before her birth that she had Down syndrome.

Jurors found Portland-based Legacy Health negligent for failing to spot four-year-old Kalanit Levy’s chromosomal abnormality before her birth, and blamed a failure of communication between doctors and lab workers, in part, for the missed diagnosis despite several red flags raised by ultrasounds.

Parents Deborah and Ariel Levy were awarded $2.9 million based on estimates of the extra costs they will incur in caring for their daughter over her lifetime because of her medical condition. They originally sought $14 million.

Cases of Wrongful Birth

Theirs is just the latest in a series of “wrongful birth” jury awards across the country, as prenatal screening methods improve. The number of genetic tests available in the U.S. has more than tripled in the past decade, allowing potential parents to choose abortion over delivering babies with health abnormalities. As many as 90 percent of women with a prenatal Down syndrome diagnosis choose to have an abortion, according to research published by the national Institute of Health, as do 60 percent to 90 percent of women with other prenatal genetic abnormalities.

People with Down syndrome typically have below-average intelligence and are more likely to experience respiratory and other health problems than the general population. They typically can be expected to live into their 40 or 50s. Other conditions that can be detected in utero pose even greater challenges.

In 2005, Ohio’s Supreme Court upheld a couple’s right to sue their obstetricians for failing to catch trisomy 22, a genetic defect. In 2011, a Florida couple won $4.5 million to care for a son born with one leg and no arms after arguing the missing limbs should have been caught by ultrasounds.

The Burden of Medical Expenses

When potential parents don’t have accurate medical information, the surprise of a genetic or other health condition on delivery day is just the first of many shocks. Caring for these children can be prohibitively expensive. Even though parents inevitably grow to love babies they might not have chosen to carry to term, they can’t always afford to care for them, said attorney Robert J. Talaska, an expert in medical malpractice, birth injuries, and wrongful birth.

“The issue is not ‘I would have rather seen this child dead than alive,’” Talaska said. “The issue is, there are medical expenses.”

Fighting Liability for Medical Negligence

To avoid being liable for negligence, doctors and health care providers need to explain prenatal medical diagnoses clearly and to outline risks and options to their patients, Talaska said. Sometimes a health problem is obvious, other times it’s unclear if a fetus is abnormal or the risk of problems is relatively small. Regardless, “Doctors need to be objective and not to inject their own values system into it, to just provide information objectively,” he said.

Arguing and Winning Cases of Wrongful Birth

To win a wrongful birth case, parents must successfully argue that they would have terminated the pregnancy had they been fully informed. If they are regular donors to anti-abortion groups, for example, they’ll have a hard time in court.

They should also be able to argue that they face steep medical expenses because of their child’s health condition. Parents may want to sue to make a point if a genetic condition causes a baby to die soon after birth, but because jury awards are generally made to cover the cost of caring for an ill child, few attorneys will take a wrongful birth case where there are no such expenses, Talaska said. An experienced attorney can evaluate your case and help you decide if you have grounds to pursue a wrongful birth lawsuit.

Considering Matters of Abortion

Seating a jury can be a challenge in these lawsuits because emotions run high when abortion is at issue. When litigating in Texas, for example, Talaska said 100 people from an initial jury pool of 275 were eliminated immediately because of strong anti-abortion views.

The fear that wrongful birth awards are tantamount to an official endorsement of abortion has spurred about a third of states to prohibit these lawsuits, and others limit monetary awards to payments for medical costs without allowing higher punitive payouts.

Abortion opponents have also been vocal in their criticisms of parents like Deborah and Ariel Levy, who have reportedly received death threats as a result of their suit against Legacy Health. Dozens of blogs and online articles decry their legal efforts.

Although they would not have chosen to carry their daughter to term if they had been fully informed of her medical condition, the Levys now love four-year-old Kalanit, they testified in court. But they’re deeply worried about providing speech therapy and meeting all her medical needs in the coming decades, their attorney told The Oregonian.

By: Courtney Sherwood

–

At Maya Murphy, P.C., our experienced team of personal injury attorneys is dedicated to achieving the best results for individuals and their families and loved ones whose daily lives have been disrupted by injury.  Our personal injury attorneys assist clients in New York, Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, Westport, and throughout Fairfield County. If you have any questions relating to a medical malpractice claim, hospital or physician negligence, or a personal injury claim or would like to schedule a free consultation, please contact our Westport office by phone at (203) 221-3100 or via e-mail at JMaya@Mayalaw.com.