Question

Prompt Do you believe there should be a limit or cap on the amount of damages awarded to a plaintiff in a tort case? Why or why not? Be specific.

Submission Our discussions are a valuable opportunity to have thoughtful conversations regarding a specific topic. You are required to provide a comprehensive initial post with 3–4 well-developed paragraphs that include a topic sentence and at least 3–5 supporting sentences with additional details, explanations, and examples. In addition, you are required to respond substantively to the initial posts of at least two other classmates on two different days. All posts should be reflective and well written, meaning free of errors in grammar, sentence structure, and other mechanics.

For a plaintiff to win a tort case, she must allege and prove that she was injured. The fear that she might be injured in the future is not a sufficient basis for a suit. This rule has proved troublesome in medical malpractice and industrial disease cases. A doctor’s negligent act or a company’s negligent exposure of a worker to some form of contamination might not become manifest in the body for years. In the meantime, the tort statute of limitations might have run out, barring the victim from suing at all. An increasing number of courts have eased the plaintiff’s predicament by ruling that the statute of limitations does not begin to run until the victim discovers that she has been injured or contracted a disease.

The law allows an exception to the general rule that damages must be shown when the plaintiff stands in danger of immediate injury from a hazardous activity. If you discover your neighbor experimenting with explosives in his basement, you could bring suit to enjoin him from further experimentation, even though he has not yet blown up his house—and yours.

Answer 1

I think that there should be limits on unlimited damage punishments which are non-economic in medical fraud cases. Because these malpractices affect negatively to various healthcare factors in United States like cost of the treatment , accessibility and the quality of services received. These factors should be considered all together when debating about tort reforms and medical malpractices damage caps because the policies issued doesn't affect a single factor but it affects the other two factors also.

The first thing which should be understood clearly is what damage caps dont do. The amount of money a patient needs to recover, including the future bills and support care , are not limited by damage caps. This becomes important in some specific cases like a baby suffering from brain damage.Further, damage caps do not limit the amount of money an injured patient may recover for lost wages or future wage loss. What damage caps do limit, but by no means eliminate, is recovery for noneconomic damages like pain and suffering. In California, a state with damage caps, a malpractice plaintiff may still recover up to $250,000 for pain and suffering in addition to the recoverable damages for medical costs and lost wages (if pending legislation passes, the cap will be raised to $750,000). In states without damage caps, damages for pain and suffering often dramatically and unpredictably inflate personal injury awards by millions of dollars. Sound public policy may dictate that healthcare organizations and physicians pay patients for injuries caused by medical error; however, sound public policy should not dictate that we make lottery winners of their lawyers.

Regarding costs: Spiraling damage awards have pushed malpractice insurance premiums for some medical specialties to levels previously unimaginable. However, in states with caps, malpractice premiums are sometimes two-thirds lower than in states without caps. The cost of unlimited pain and suffering awards is passed on to every physician, every hospital, and every consumer of healthcare. Someone has to pay for those $30 million, $50 million, and even $100 million verdicts; unfortunately, we all do.

We know that physicians are now practicing defensive medicine due to the threat of malpractice litigation. However, it seems that defensive medicine has merely resulted in more, not better, care. Unlimited malpractice damage awards can even thwart prospects of early settlements of malpractice cases, for the plaintiff may hold out longer in hopes of a larger award.

Regarding access: Hospitals and physicians are facing economic difficulties and cannot afford to support the costs associated with unlimited malpractice awards. Since 1987, sweeping reductions in Medicare and commercial reimbursement rates have left many physicians and hospitals in dire financial straits. Escalating costs of providing healthcare, in the face of diminished reimbursement rates, are literally driving some doctors and hospitals out of business. In areas of the country without damage caps (sometimes called "tort reform") there are shortages of physicians in several high-risk specialties because of unlimited malpractice exposure. All across the country hospitals have difficulty finding on-call physicians for their emergency departments. Often, physicians cite malpractice exposure as a reason they do not take ED calls.

Regarding quality: Proponents of unlimited damage awards state that fear of malpractice suits is an effective force in improving the quality of care. However, research has not borne this out (Edbril & Lagasse, 1999;Localio et al., 1991). The argument that fear of a large award is a deterrent to unsafe care is exceedingly weak.

Both sides of this debate end up with having better healthcare in the United States. Some of the healthcare performance development societies and agencies are tirelessly doing there work in relation to develop the healthcare systems to a better standard of quality. I think limits on non economic damages in medical malpractice litigation is more equally balanced then the competing interests of the patients and doctor's and staff etc who treats them.