Recently, Senator Nicholas Sacco (D-Bergen/Hudson) proposed legislation capping medical malpractice recoveries. The law, if passed, would limit medical malpractice recoveries in the event of a death at $500,000.00, and at $250,000.00 if the patient is still alive. The legislation further seeks to limit attorney’s fees. Sen. Sacco expressed concerns about physicians leaving the state and increasing insurance premiums, ignoring the dramatic harm some patients suffer at the hands of negligent physicians. Sen. Sacco’s proposed legislation would give physician’s and insurance companies added protections at the expense of everyday people and the tort system as a whole.
Medical Malpractice Claims Compensate for Injuries Suffered
In the case of medical negligence, or medical malpractice, a plaintiff must prove that a physician or medical facility did something they should not have done or failed to do something they should have. A plaintiff must also prove this negligent act or failure to act caused them harm. The plaintiff is allowed to recover damages for the harm caused. Nothing more. Harm can be economic, like lost wages or medical bills, or non-economic, like pain, suffering, loss of enjoyment of life and disability.
Evidentiary Requirements Deter Frivolous Malpractice Lawsuits
To bring a case for malpractice, the plaintiff must provide an Affidavit of Merit, provided by a medical professional with the same qualifications as the negligent doctor. Without this Affidavit of Merit, a medical malpractice case cannot go forward.
Many times, other specialists are required to demonstrate causation and the extent of the injury caused. Let me give you an example. A gastroenterologist fails to diagnose Stage II colon cancer when he performs a colonoscopy. The patient finds out about the cancer several years later when it had progressed to Stage IV and spread to the liver. He hires an attorney who requests the colonoscopy reports and images. That attorney provides all records including these reports and images to a gastroenterologist. This expert gastroenterologist feels there is a good faith basis to move forward with the claim and provides an Affidavit of Merit.
How do you prove that earlier intervention would have made a difference in this patient’s care? After all, he already had Stage II cancer. A gastroenterologist is not qualified to offer opinions in that area. Other specialists must come in to provide such opinions on causation (i.e. what harm the failure to diagnose caused) and damages (i.e. how extensive that harm is). Perhaps a pathologist could analyze any biopsies to assist in staging the cancer at the time of the colonoscopy and the subsequent surgery required by the Stage IV diagnosis. Perhaps an oncologist could testify as to the nature of treatment for Stage II and Stage IV cancer. This oncologist could also testify as to the likelihood of survival for each Stage. Perhaps a colorectal surgeon specializing in the treatment of colon cancer is needed as well. Did the plaintiff lose wages as a result of the treatment? An economist is needed to address this economic harm. What about the medical bills? A medical billing expert is needed to address the usual and customary rate of the medical bills.
Medical Malpractice Claims Are Expensive to Pursue
Why is this story important? The above basic fact pattern is relatively straightforward in a medical malpractice case. The costs of pursuing that case could easily reach into the hundreds of thousands of dollars. Complex cases take many more experts.
Let’s put this into context. If the client was alive at the time of settlement in the case above, his damages would be capped at $250,000.00. Out of that $250,000.00, expenses would have to be paid back. The attorney’s fee would be paid out of the capped damages as well. What if the expenses in the case were $250,000.00 (which in a complex case, they easily could be)? The client and the attorney would recover nothing.
The tort system is meant to compensate people harmed by the negligence of others. If a jury believed that harm was $10,000,000.00, is the injured party compensated adequately when the legislature has capped his damages at $250,000.00? The tort system is meant to ensure that negligent doctors responsible for causing the harm pay for the harm. Is the negligent doctor paying for the harm caused in this scenario? The tort system is meant to deter others from committing harmful acts. Where is the deterrence?
Capping Medical Malpractice Damages Will Harm New Jerseyans
The result of this act will be to end medical malpractice claims in the State of New Jersey. The malpractice bar contains some of the best attorneys I have ever had the pleasure of meeting. These professionals care about their clients. They forward costs so their clients can pursue justice in situations you cannot imagine. Medical professionals should be held responsible for harm caused by negligence, just like the rest of us.