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Wednesday, 05 July 2017 00:00

New Healthcare Bill limits pain and suffering damages in medical malpractice lawsuits.

Written by Jonathan Druckman

The GOP Bill will make $250,000 the maximum amount recoverable for non-economic damages.

One of the top stories since President Trump has taken office has been on repealing and replacing The Affordable Health Care for America Act, passed in November of 2009. During his presidential campaign, Trump repeatedly pledged to fix a “broken healthcare system”. However, the newly released Bill, includes a provision that would drastically limit the ability for individuals to recover from medical malpractice.

Medical Malpractice is an important part of tort law that is based on the traditional principles of negligence. Medical Malpractice occurs when a patient seeking care from a doctor or other medical professional is injured as a result of that professional’s deviation from standards in their profession. When a person goes to a doctor for treatment, there is always a certain amount of risk involved. Even if a doctor performs the treatment correctly, there is a chance that the patient will not have a good result. Medical Malpractice lawsuits are not for proper in those situations. It is not malpractice simply because a patient has bad outcome from the treatment. Instead, Malpractice is committed when a doctor fails to provide a certain level of care or fails to inform a patient of medical procedures before starting treatment.

The new Healthcare Bill, would limit recovery for non-economic damages. For example, in June 2017, a Pennsylvania jury awarded a man over $600,000 for non-economic damages (pain and suffering) in a medical malpractice lawsuit where a doctor removed his healthy testicle by accident. Mistakes like these should never happen and when they do it is a clear sign of a doctor’s negligence. The new Bill would reduce that amount by $350,000 to just $250,000. What is remarkable about the new Bill, is that it sets this limit regardless of the injury.

If a doctor’s negligence resulted in paralysis rendering a person unable use their legs for the remainder of their life, this Senate Bill will limit the amount that the victim can recover for pain and suffering to only $250,000. The absurd implications of this Bill are likely rooted in a desire to lower health insurance premiums and was heavily influenced by insurance company lobbies. Doctors are required to have medical malpractice insurance, just in case these sorts of incidents happen. Insurance companies will receive a massive windfall if this Bill becomes Law. Few people would accept any amount of money to be stuck in a wheel chair for the rest of their life. Insurance companies already require individuals to pay for accidents that might occur in the future, so why is an arbitrary limit being imposed when people pay for this service? And for Senators to say that the suffering and loss of enjoyment for the rest of someone’s life for is capped at $250,000 is nothing short of ridiculous.

Fortunately, the Bill does not touch the damages awarded for medical expenses and the loss of future wages. Passage of the Bill remains unclear. Even many conservative pundits are against this portion of the bill because it appears to be more federal government overstep into tort law which was typically left up to state legislatures. Some states already have caps in place, but many state constitutions actually prohibit caps. The Bill would also implement a uniform statute of limitations instead of leaving it to the states as has traditionally been done in the past. The Bill’s misguided effort also flies in the face of the fact that medical liability expenditures makes up less than 3% of total health care spending.

If you have been injured as a result of a medical procedure gone wrong give us a call to discuss your rights. You can call to speak with an attorney, 7 days a week at any time. Our number is 908-353-5850.

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