How do we quantify pain and suffering? This question should be answered satisfactorily before people could even attempt to debate whether or not to impose limits on recovery in medical malpractice cases.Undoubtedly, it is difficult to talk about limits on damage awards without a standardized costing system which would guide the proper authorities to come up with a fair determination of the damages done to victims of medical malpractice.
Since there is no such system, the task of ascertaining the extent of damage inflicted on victims is usually left to the country’s judicial system which decides the issue on a case-to-case basis.This being the case, setting a maximum limit or a cap on the amount that could be awarded to victims would be very difficult to justify because such an act would be highly discriminatory.
For instance, a cap of $200,000 would mean that claimants could not be awarded with more than said amount.
The unfairness of this system would be immediately evident in a situation where two individuals suffer the loss of their upper limbs, the first victim losing one and the second suffering from the loss of both limbs. The court could award $140,000 to the first victim who loses one limb, for example, but the claim of the second victim would be limited to $200,000 despite losing both limbs. What it would amount to is that the other limb lost by the second victim would only be compensated with $60,000. In this example, the second victim is not compensated fairly for his/her loss. Setting a cap therefore discriminates against the victim who suffers more. (Hiatt, 2002)
Another question worth asking is: Who stands to gain if we do limit recovery? If the first question tends to be highly contentious, this second question involves a cut-and-dried issue because the answer is rather obvious. Putting a cap on awards granted in connection with medical malpractice cases favors only the medical practitioners who commit the act to the utter detriment of the victims. In other words, setting such a cap would treat the victims unfairly and favor the perpetrators. This, too, is discrimination. Some quarters attempt to justify this act by saying that providing for a maximum limit to recovery is a way of stemming the spiraling cost of health care in the country. Opponents, however, argue that this is not only deceptive but unconstitutional as well. (Hiatt, 2002)
Critics of a cap on damage awards argue that it violates the Fourteenth Amendment which provides “equal protection” to all Americans. As illustrated earlier, a cap denies “equal protection” to those victims who suffer more, because they could not claim compensation beyond what the statutory cap allows. This was cited in Jones v. State Board of Medicine where the court declared unconstitutional the 1975 Hospital-Medical Liability Act passed by Idaho because it failed to treat victims of malpractice equally. In other words under the Act, the claimants whose injuries were deemed below the cap received full compensation while those whose damages exceeded the limit were denied the opportunity to recover fully because they were not awarded full compensation. (Hiatt, 2002)
Another objection voiced against putting a cap on damage awards is the fact that it violates the individual’s “right to trial by jury.” Under the law, evaluating the extent of damages is a function of a jury. In the presence of a cap, the role of the jury is limited only up to the extent of the cap – in effect, interfering with the constitutional duty of a jury. In Boyd v. Bulala, the opinion of the federal district court was that the cap of $750,000 on damage awards set by the state of Virginia “violated the right to trial by jury provided for by both federal and state constitutions.” (Hiatt, 2002)
It is clear from the foregoing discussion that limiting the recovery in medical malpractice cases is very prejudicial to the interests of the victims. In the interest of fairness, every malpractice case should be deliberated on by a jury based on its own merits and the extent of damage award be assessed without the constraints of a cap. This will give every victim of medical malpractice cases the much-needed opportunity for a full recovery.
Hiatt, M.D. (2002). Caps on Damage Awards in Medical Malpractice Cases: Constitutional
Challenges. Retrieved October 28, 2007 from http://jpands.org/hacienda/hiatt1.html