Imagine if the amount of compensation you could receive after you or a family member is injured or killed due to medical negligence was decided before your injury even happened?Guess what? The federal government is trying to pass a bill right now that could affect your ability to sue a doctor or hospital if they make a mistake that alters your life, or a loved one’s life, forever. And they’re halfway there to passing it already…
The Protecting Access to Care Act has passed through the House and is now headed through the Senate. If passed by the Senate and then signed by POTUS, the bill would put on a pre-existing federal limit on the “non-economic damages” you could recover after you’ve been injured by medical negligence. Non-economic damages are damages that didn’t directly cost you money, as opposed to “economic damages”, which would be things such as damage to personal property, medical bills, loss of ability to earn income, etc.
The bill would cap non-economic damages at $250,000. Now this might sound like a lot – thats what the (largely Republican), advocates of this bill want it to look like. But to a medical malpractice attorney, in many cases, the $250,000 wouldn’t even cover attorney’s fees. And what does that mean? It may be hard to even find a medical malpractice attorney who will help you. That’s right – this bill essentially shelters doctors and healthcare providers, by, in some cases, taking away the ability of a lower-middle income person to hold them responsible for their mistakes. You could argue that it takes away the incentive for healthcare providers to provide the best service possible to you, if they know many medical malpractice attorneys cant even afford to sue them if they make a mistake or are negligent.
Say you have a baby who dies in a hospital because of negligence or a mistake made by a medical professional; what are the economic damages you sustained due to the baby’s loss? The baby wasn’t generating income for the family so that’s out. The medical damages are limited because the baby didn’t live to suffer a permanent, life-altering injury that would’ve required numerous future treatments. So the money you’ll get for the economic damages aspect of the case is minimal. BUT you have the non-economic damages, which include mental pain, anguish, suffering – and we all know there’d be a whole lot of that. And then the punitive damages – these serve to deter the same doctors and medical providers whose negligence or mistake cost your baby’s life, from making the same mistake again. They may take much more precaution with the next baby they handle, saving a future person from having to suffer the same ordeal.But say the non-economic damages are now capped at $250,000 (as they already are in some states). Your baby is gone, and the feds have already decided that you should get no more than $250,000 in non-economic damages. And that’s before attorney’s fees, which alone could end up being more than 250K, if you could even find an attorney who would be willing to potentially lose money and take your case. See now why some personal injury cases settle for so much? After the attorney’s fees, and the appeals, the plaintiff is getting a whole lot less money than the public is led to believe by the tort reformers.Your baby died in a hospital because of negligence/medical error, and because of the $250K cap, you may find it hard to even find an attorney to file a case. This is actually happening in right now in states like California. Thanks, tort reformers!
I’m sure you’ve heard the buzz term “frivolous lawsuits”. Well let’s break that down for a second. The word “frivolous” is defined as; “Not having any serious purpose or value” or “Having no sound basis“. What if I told you that frivolous lawsuits don’t exist? The term was created by tort reformers who shelter big business and insurance companies.
A great protection against frivolous lawsuits would be to put mechanisms in place to prevent bad cases from ever going to trial in the first place. How about a contingent-fee agreement, in which, before a case is even filed, a lawyer agrees to front all the money for discovery, expert witnesses, litigation, etc. (we’re talking tens to hundreds of thousands of dollars in some cases). Seems like if the lawyer is putting up that much of their own money, they are going to make sure that the case is going to be seen as legitimate to a judge and jury and is by no means “frivolous”. And on top of that, just to be safe, how about we throw in the Summary Judgement Motion, which can be filed by a party in order to get the court’s determination on whether or not there’s a genuine reason for the case to even go to trial.Now what if I told you these (and other) protections have already been in place for decades for the purpose of preventing these “frivolous lawsuits”, which tort reformers claim are such a huge drain on our economy? In fact, the Summary Judgement Motion has been in place since 1937!
Tort reformers backed by big corporations want to shelter their employers from the bad press of highly-publicized trials for people who were injured or killed by the mistakes and/or negligence of the corporation. Instead, they would much rather enter into private settlement negotiations that the public never hears about. AKA Reputation preservation. AKA less losses. AKA less accountability for their mistakes. Hmmmm…now it’s starting to make sense.Tort reformers want to pass legislation such as the Protecting Access to Care Act, which limits our ability as individuals to take a stand against big business with deep pockets. In order to get support from people, these tort reformers use rhetoric and buzz terms (“ambulance chasers!“), and state logical fallacies such as; “frivolous lawsuits are destroying our justice system!”
We urge you to do some research before repeating this rhetoric, and trust the simple fact that money talks on both sides of the argument, and that big business doesn’t want to lose money via lawsuits and damage to their reputation, just as much as personal injury attorneys don’t want to lose money by filing “frivolous lawsuits”
Scartelli Oslweski, P.C., has just won a 10 million dollar verdict for a client who suffered permanent injuries in a medical malpractice case. We work for individuals, not for big business, and if you’ve been injured by medical negligence, we will do whatever it takes to help you get through your ordeal. If you need help determining if you have a case contact us any time to talk about it, for free.Reach out through this form or call us at (877) 353-0529