By Richard Shapiro, Virginia Personal Injury Attorney
A new controversy is waging over an old medical malpractice law in California. A group of trial lawyers, consumer advocates and the nurses union is gathering signatures for a new state ballot initiative to increase California’s cap on some types of medical malpractice damages.
The new campaign wants CA voters to make changes to a 38 year-old law that has a $250,000 cap on the amount of damages that juries may award in medical malpractice cases, for ‘pain and suffering.’
The law does not have a ceiling on jury awards for wage losses, medical costs or punitive damages due to malicious misconduct by health care providers.
The Consumer Watchdog, a leading consumer advocacy group is planning the initiative, as there does not appear to be any legislation on the horizon in the California legislature.
There are many opponents to making any changes to the California medical malpractice law. Opponents include 700 organizations that represent doctors, hospitals, insurers and clinics. They state that increasing the cap is going to boost medical costs for the state and for consumers by billions each year.
Both sides have done polling that shows support for their respective positions on the law.
Other states have differing laws on medical malpractice caps. In the state of Virginia, for example, the law states that no matter the harm caused to the patient by a medical error, the patient and family only may receive a maximum of $2 million. If the lawsuit for medical negligence is decided by a jury and they award more than $2 million, the judge then reduces the award down to $2 million.
The law in Virginia also limits damages regardless of economic loss for the person. For instance, if your mother became a quadriplegic due to a neck surgery that was botched by a doctor, the most she could ever receive is $2 million, even if the medical bills cost $10 million.
The view that the firm has on this is that all such caps are unconstitutional under the seventh amendment to the U.S. Constitution. It provides that a jury trial is available in all common law cases, medical malpractice cases are clearly common-law cases so caps or ceilings are unconstitutional.
Some states have struck caps down as constitutional violations.
Why can some states say caps are unconstitutional, and others disagree?
That is an enigma with no answer.
Shapiro, Lewis, Appleton & Favaloro, P.C. is a Virginia personal injury law firm that provides frequent commentary on medical malpractice law.