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California Voters Face Damage Cap  Initiative in November

Voters in California are going to be the latest decision makers in a long and contentious argument over pain and suffering awards tied to medical malpractice.

In California, pain and suffering awards (also called non-economic awards) have been capped at $250,000 for almost four decades in medical malpractice cases. A recently-qualified state ballot initiative (Proposition 46) will give voters the opportunity to increase it to $1.1 million.

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Prop. 46 also includes a provision under which doctors would be subject to random drug and alcohol testing. Many believe the focus on random drug testing was used to get voters’ attention and pass the initiative with its higher cap.

Ironically, the Bureau of Labor Statistics calculates the buying power of $250,000 in 1975 dollars equals slightly more than $1.1 million today when adjusted for inflation. Prop. 46 would add an inflation adjustment to the new cap.

The argument between medical professionals and the legal community over pain and suffering awards has been around for years. Defendants claim non-economic awards are impossible to assess like real damages such as lost income or future medical bills. Plaintiffs say pain and suffering damages are very real and in some cases mean a lifetime of declining lifestyle.

Interestingly, the focus of the anti-pain and suffering arguments center not on the actual losses suffered by plaintiffs but the fact that non-economic damages are hard to quantify.

“Five different juries hearing the same case can come up with five different verdicts,” says Thomas Hurlney, a West Virginia defense attorney quoted in medscape.com. “Non-economic damages depend on intangibles…”

A recent article on AllLaw.com pointed out non-economic damages often depend on very subjective elements.

“In personal injury cases, damage awards can vary widely even among plaintiffs who have very similar injuries,” the article says. “If you get into an accident, how can you convince the insurance adjuster, the defense attorney, and the jury that you really were hurt, and that your injury was as bad as you say it was? Your ability to present a winning claim for pain and suffering will often depend on the following factors:

  • consistency
  • credibility
  • likeability
  • your ability to testify frankly and openly about your pain and suffering
  • having your health care providers on your side

When factors such as likeability and smoothness of testimony are factored in, one can see just how subjective such awards can be.

Forbes contributor Michael Krauss says that non-economic damages are very real but it is difficult to apply them equally and thus they should be capped.

“An injured amateur violinist can no longer practice her beloved hobby; a crippled spouse can no longer enjoy sexual relations.  These psychic injuries are real, not “made up,” damages, but they have no readily available market equivalents.  To satisfy her burden of proof, a tort victim can’t cite market rates; rather she may show a “day in the life” film that illustrates her misery, and ask the jury to award an amount it finds “just.”  The perceptive reader has likely noticed that, while a judge can quash an economic damage award that goes beyond the evidence, no such quashing is possible for pain and suffering awards precisely because there are no market standards that set their measure.  In other words, juries hold more power, and judges less power, over pain and suffering than they do over economic damages.  That’s fine if you like juries, I suppose, but it’s not fine if you think equally damaged victims should be compensated equally under state law.”

On the other side, plaintiff’s attorneys argue that the suffering of their clients due to another’s negligence should be part of any settlement or jury verdict.
For instance, the mental health and well-being of a negligence victim certainly can have a major impact on his/her life and the life of their family. Some suffer genuine embarrassment if disfigured. Others must endure pain, inconvenience, physical impairment and other injuries for years or decades.
All Law goes further, saying that caps are “arguably unconstitutional, because caps can infringe on the right to a legal remedy, trial by jury, and procedural fairness.”
Many juries tend to go along with the notion of lifelong suffering and in cases not capped by state law major verdicts have included large sums, half of which were for non-economic damages.

For example, a New York jury awarded the estate of a man who died in a hospital due to a mix-up in his care instructions $7.5 million — $5 million of that for pain and suffering.

Meanwhile back in California the battle over Prop 46 is growing heated with millions of dollars already being pumped into the war chests of the pro- and anti-Prop 46 camps. One account of electioneering on the issue peg the anti-Prop 46 coffers at about $36 million and the supporters’ at just over $2 million.

According to an article on Clinical Advisor’s website, a series of television and radio ads by the initiative’s opponents already has started airing in California.
“The 30-second television commercial and the one-minute radio spot accuse trial attorneys of looking out for their own interests by pushing the ballot measure, claiming that attorneys will make more money from higher medical malpractice awards,: says the Clinical Advisor article.

Consumer Watchdog, a supporter of Prop 46, issued a statement questioning why providers don’t want to be as “accountable for impairment and their errors as other professions.”
Consumer Watchdog also is the organization that came up with the idea of adding random drug and alcohol testing to the initiative. That piece of the initiative has been getting a lot of attention through a series of web videos that show everyday employees complaining about having to take drug tests while a series of doctors reply that they do not.
The issue and this initiative both are awash in complexity which may not be easy for voters to churn through. It may all come down to who has the best 30-second TV spot. In any event, the fight is likely to heat up even more as Election Day approaches.

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