In medical malpractice cases, doctors and hospitals are often shielded from responsibility to children they harm due to "tort reform" laws.

 

We recently posted an article explaining how reforming the legal system would not prevent medical malpractice from occurring, but instead punish the victims of medical malpractice and reward insurance companies. If you need further convincing, a recent article in the Huffington Post provides just that.

The article introduces Naython Watts, a soon-to-be 6 year old boy who suffered significant brain injuries because two (not one, but two) doctors provided substandard medical care before he was born. As a result, Naython cannot talk, he can only make sounds. He has the mental capacity of a 2 year old, and cannot walk on his own or feed himself easily. He will need to be taken care of for the rest of his life.

His mother won the medical malpractice case against the medical center for permanently injuring her son. She was awarded $1.45 million for non-economic damages from a jury, as well as $3.37 million to cover future medical damages.

Unfortunately, because of a “tort reform” law, Naython Watts and his mother didn’t deserve that money. Instead, the state law cut their non-economic damages from $1.45 million to $350,000 and split the medical damages award in two.

Luckily, the Missouri Supreme Court ruled the statute unconstitutional, as it violated the right to a trial by jury. And Missouri isn’t the only state to deem the state damage caps unconstitutional.  Missouri joins Alabama, Georgia, Illinois, New Hampshire, Oregon, Texas and Washington.

Although Naython will get some benefit from the jury’s award, children and other victims of medical malpractice in 33 other states will not. In those states tort reform laws set the cap for non-economic damages, for pain and suffering, as low as $250,000.

Not only do these caps further punish these victims, but they don’t do anything to prevent medical malpractice from occurring in the future. Doctors don’t have incentive to prioritize patient safety. The only winners are insurance companies. In fact, a study conducted by Americans for Insurance Reform in 2009 found that under Missouri’s damages cap, medical malpractice rates actually increased by 1 percent. Meanwhile, in Iowa, which does not have a damage cap, malpractice premiums were reduced 6 percent.

Clearly, damage caps don’t do anything to reduce healthcare costs. To end the epidemic of medical malpractice and reduce healthcare costs, policymakers can’t follow the advice of insurance companies. Instead, we hope that policymakers keep their constituents in mind, and think of the people’s best interests in encouraging reform within the healthcare industry by encouraging good patient safety standards.

Some people think all the money goes to the parents – it doesn’t.  In a medical malpractice case, the settlement proceeds for a disabled child are put in some type of trust, usually a Special Needs Trust.

If you know a family with a special needs or disabled child, have them order our free guide to resources in D.C., Maryland and Virginia, Getting Everything Your Special Needs Child Deserves.

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