The Tennessee legislature approved comprehensive medical malpractice tort reform last month. While the legislation is designed to curb frivolous lawsuits and promote job growth by removing the fear of litigation and insurance costs, the tort reform legislation merely kowtows to pro-business advocates at the expense of the victims of negligence and tortious wrongdoing and their families. By capping damages for medical malpractice and other negligent conduct, the legislation removes accountability from the medical profession and limits the rights of victims of medical malpractice to obtain adequate compensation as determined by a jury of their peers.
Among other things, the tort reform legislation:
- Limits non-economic damages, such as pain and suffering, to $750,000 in most cases;
- Limits non-economic damages to $1 million for cases in which the plaintiff becomes a paraplegic or quadriplegic because of spinal cord injury, sustains third degree burns over 40% or more of his or her body or face, or has a hand or foot amputated;
- Requires that punitive damages be proven by clear and convincing evidence;
- Caps punitive damages to two times compensatory damage or $500,000, whichever is greater, unless the defendant intended to injure the plaintiff, was under the influence of drugs or alcohol, or intentionally falsified records to avoid liability;
- Prohibits punitive damages in products liability actions, unless the seller had substantial control over the design or manufacturing of the defective product or had actual knowledge of the defect in the product at the time it was sold.
There is no cap on the amount of economic damages that can be recovered. The Tennessee House of Representatives reluctantly agreed to approve the legislation even though the Senate deleted a provision that would have excluded convicted felons from protection against unlimited non-economic damages.
As Tennessee Sen. Eric Stewart said in a statement, the legislative reforms “put a price on the life of the weak, the paralyzed, the neglected — all under the guise of economic development.”
If approved by Tennessee Governor Bill Haslam, as is expected, the bill would take effect October 1, 2011.
Steinberg Goodman & Kalish (www.sgklawyers.com) is dedicated to protecting victims and their families. We handle medical malpractice, product liability, personal injury, wrongful death, auto accidents, professional negligence, birth trauma, and railroad law matters. Contact us at (800) 784-0150 or (312) 782-1386.
Medical malpractice reform, including proposed legislation that would cap the amount of damages that can be received in medical malpractice cases, has been causing much debate recently. Medical malpractice is a legal cause of action that can be brought when a healthcare provider fails to meet their obligation to provide adequate and appropriate medical treatment. When a healthcare provider fails to provide the appropriate treatment, and the patient suffers injury or death as a result, the healthcare provider may be held liable for medical costs, non-economic damages (pain and suffering, loss earning potential) and other expenses that the victim has incurred.
Several states, including North Carolina and Virginia, have voted on proposed medical malpractice legislation. Earlier this year, the North Carolina Senate approved a tort reform bill that would cap non-economic damages at $500,000 and require the plaintiff to prove gross negligence, rather than ordinary negligence, in order to sustain a medical malpractice claim against emergency room doctors.
Contrary to the North Carolina bill, Virginia’s medical malpractice legislation proposed to raise the cap on damages in medical malpractice cases from $2 million to $3 million and would increase the amount by $50,000 every year until 2031. Despite the fact that the bill was supported by both trial lawyers and doctors, and had been approved by the Virginia legislature, the governor vetoed the bill on March 31, 2011. Given the overwhelming support for the bill in Virginia’s legislature, however, it seems almost certain that Governor McDonnell’s veto will be overridden and the law will pass.
Many believe that the governor’s motivation for vetoing the bill, which was unanimously passed by the Virginia Senate and by a vote of 89-7 in the House, is largely due to future political aspirations. Critics suspect that Governor McDonnell has presidential or vice-presidential aspirations for 2012 and wants to be able to tout the fact that he vetoed medical malpractice legislation that would increase caps on damages and hurt doctors and hospitals.
In blocking the legislation, however, Governor McDonnell has only succeeded in hurting patients. Not only do caps on medical malpractice damages hurt victims of medical malpractice and their families, but caps on damages may also be unconstitutional. The Seventh Amendment guarantees the right to a trial by jury in civil cases based on common law, which imposes no caps on civil trial damage awards by juries. Nonetheless, regardless of whether medical malpractice damage caps are constitutional or not, they undoubtedly hurt patients and the general public by failing to hold doctors, hospitals and other medical professionals financially responsible for their injuries or deaths that they have caused.
Steinberg, Goodman, & Kalish (www.sgklawyers.com) is dedicated to protecting victims and their families. We handle medical malpractice, product liability, personal injury, wrongful death, auto accidents, professional negligence, birth trauma, and railroad law matters. Contact us at (800) 784-0150 or (312) 782-1386.
