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Elaine Mandel
Elaine Mandel
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Medical Malpractice Damage Cap Struck Down in LA

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The amount a victims of medical malpractice can be awarded is limited by law in many states, including California and Louisiana. In those two states, victims’ recoveries for pain and suffering were set over two decades ago. But this may be changing.

In many states there are limits, or “caps,” on what victims of medical malpractice can recover when they sue the doctors or hospitals that caused their injuries. In California, for example, victims are limted to $250,000 in “pain and suffering” type damages. This cap was put in place in 1975 — and hasn’t been raised since. While $250,000 might have been sufficient 20 years ago, it certainly isn’t now. In fact, that amount would need to be in the range of $1.6 million in 2006 dollars just to keep up with inflation.

Imagine your child being deprived of oxygen during delivery, and she’s now permanently brain-damaged. In California, all you can recover for the pain and suffering that child will endure throughout her life is $250,000. Or think of the surgeon who left a medical instrument inside his patient — all that patient gets for his emotional distress is $250,000. Or the senior citizen who develops bedsores and dies because her nursing home delivered sub-standard care. The list goes on and on.

But there may be some hope in sight for medical malpractice victims, with a new court decision from Louisiana.

Louisiana medical malpractice victims are also capped at $500,000; this limit was also set back in 1975. A medical malpractice victim challenged this limit, saying that it was not an adequate remedy for their injuries. A federal appellate court agreed.

A state appeals court in Lake Charles ruled Wednesday that because the $500,000 cap Louisiana put on medical malpractice damage awards in 1975 is worth far less in today’s dollars, it violates the state constitution by robbing the worst-hurt patients of their right to an adequate legal remedy for their injuries.

Five judges of the 3rd Circuit Court of Appeal split 3-2 on a pair of cases that challenged the $500,000 limit, which applies to all malpractice awards except those for future medical care.

These caps are unfair to victims and their families, and efforts are underway in California and other states to increase these caps to a reasonable level.