We talk a lot about medical malpractice caps (see here here and here) and late last month we noticed that some in South Dakota are trying to overturn the state's cruel 32-year-old cap on compensation for patients hurt by gross medical negligence. We hope they succeed.
The case is being brought by the parents of an infant daughter who suffered brain damage last year due to a hospital's gross negligence. According to the parents, "a feeding device was not placed in the baby's stomach but rather in her abdominal cavity" and "procedures to check the correct placement of the device were done incorrectly, and the baby was poisoned by barium, a substance used in X-rays." It is outrageous that even in cases of castatrophic injuries of children like this, non-economic compensation (for their lost quality of life) would be severely capped.
It should also be noted that such caps discriminate against children, senior citizens, those with low income and women who do not work outside the home, who are more likely to receive a greater percentage of their compensation in the form of non-economic payments. (See the the most recent edition of the Washington University Journal of Law & Policy The Racial Implication of Tort Reform written by the Center for Justice & Democracy's Joanne Doroshow and Amy Widman)
So the recent lawsuit filed in Circuit Court in Minnehaha County on behalf of this infant seeks to challenge the constitutionality of that cap. Earlier this spring a Georgia court struck down that state's medical malpractice cap on non-economic damages.