Defending Yourself Against Pain and Suffering Lawsuits

Mark Crane


May 09, 2011

In This Article

Where Caps Come Into Play

Two thirds of malpractice claims are dropped, withdrawn, or dismissed with no payment. Plaintiffs win only 15% of cases that go to trial, notes the Physician Insurers Association of America, a group of doctor-owned or operated companies that insure 60% of the nation's physicians.

Still, the giant awards drive up malpractice premiums and have prompted 28 states to enact some form of caps on pain and suffering awards. Eight state supreme courts have ruled such caps as unconstitutional and other courts have upheld them. Efforts to pass a federal cap have failed, with Republicans generally favoring them and Democrats, including President Barack Obama, opposing them. A measure now pending in Congress to enact a cap of $250,000 for pain and suffering is not expected to pass.

"Awards do not correlate with negligence. Non-economic damages are often driven by emotion," says Donald J. Palmisano, a vascular surgeon/attorney in Metairie, Louisiana, and former president of the American Medical Association. He and the American Medical Association favor laws such as those in Texas and California with a "hard" $250,000 cap. "By contrast, a 'soft' cap may be subject to exceptions: annual increases with inflation, other economic indicators, or based on a set schedule, or individual application to every defendant or plaintiff, thereby allowing several caps for a single claim. They aren't as effective in limiting unpredictable awards and they aren't as good in keeping physicians' malpractice rates in check."

Caps "let patients and insurers evaluate the full extent of losses more quickly and accurately ... and ensure that those with similar claims will be treated similarly," Physician Insurers Association of America executive director Lawrence E. Smarr testified before Congress in January.

Plaintiff's attorneys naturally disagree. "While non-economic damages are difficult to calculate, they are palpable and real," says Armand Leone. "These damages are necessary to compensate unemployed and/or poor plaintiffs and people whose injuries are severe but aren't connected with tangible economic loss.

"For example, a woman in her 40s was treated for an infection on her face," he says. "She developed necrotizing fasciitis and was left horribly disfigured. The condition didn't affect her ability to work or perform other functions. The case settled for $1 million. A cap of $250,000 would have been extremely unfair in this case.

"Sometimes, non-economic damages represent the totality of the damages when pain, suffering, and loss of enjoyment of life are catastrophic. An elderly retired patient who is injured or killed by negligence can't claim lost earnings. The only fair recovery is to focus on non-economic damages."


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