First, the undeniable YES! Yes-terday, a Florida appeals court “ruled that limits on ‘non-economic’ damages in medical-malpractice lawsuits are unconstitutional.” Woo hoo! This comes as the Florida Supreme Court considers the issue in another case – the same court that ruled in 2014 “that the caps were unconstitutional in a wrongful-death case involving a woman who died after giving birth in a Northwest Florida hospital.” See our coverage here. (One step at a time, I guess.)
Now, the NO! A Washington Post “Wonkblog” called, “In one corner of the law, minorities and women are often valued less,” presents a very a troubling aspect of our civil justice system when a case goes to trial or settles:
[W]hite and male [injury] victims often receive larger awards than people of color and women in similar cases, according to more than two dozen lawyers and forensic economists, the experts who make the calculations. These differences largely derive from projections of how much more money individuals would have earned over their lifetimes had they not been injured – projections that take into account average earnings and employment levels by race and gender.
In one case, when a 6-year-old girl and a male fetus were killed in the same car crash, the settlement for the fetus was calculated to be up to 84 percent higher than the girl’s, according to court records.
Yet valuing the destruction of someone’s life based on what they might have earned in the marketplace can result in additional types of race and gender discrimination. Because “lost earnings” make up such a significant element of compensation for severe injuries, low wage earners, children, seniors, and stay-at-home parents – often, moms - will frequently receive a larger proportion of their compensation in the form of “non-economic damages.” That is compensation for injuries like blindness, trauma, mutilation, physical impairment or a damaged reproductive system. More than half of state legislatures have severely capped non-economic damages, which experts say results in harsh discrimination. (See more here.)
Finally, the MAYBE? In 2015, Congress did something positive for injury victims (for a change.) It increased by 45 percent the federal law’s cap on damages for mass casualty train accidents – i.e., the limit went from $200 million to $295 million, with an inflationary adjustment every five years. And it made the increase retroactive to cover compensation to victims of last year’s Amtrak derailment and crash in Philadelphia, which killed 8 people and injured over 200. Many people and some Senators wanted a larger increase - but at least it was something.
Now, Amtrak just agreed to settle the Philly case for $265 – less than they had to but clearly more than the original cap. The money must now be distributed to victims and two special masters will review victims' claims:
Under the 25-page agreement, victims must decide by Nov. 21 whether to participate in the settlement. Two court masters will review submissions from the participants by Dec. 20. Amtrak and its insurers will give $265 million to a court-supervised trust by Feb. 28, with offsets for previous payments of up to $10,000 per passenger for funerals, transportation and lodging expenses. Participants will be notified by June 30 of the share they will receive.
Let's hope everyone gets the help they need.