Yesterday, the Supreme Court of Arkansas knocked “Issue 4” off the Arkansas ballot. This initiative would have drastically capped compensation for “non-economic damages” to patients injured by medical malpractice, including nursing home residents. In fact, the initiative was the brainchild of the nursing home industry.
Forget all that, though. What rightly bothered the court was that the term "non-economic damages" was completely undefined and way too “technical” a term to be understood by voters. No doubt! So in case the cruel and greedy proponents of this measure want to try again with a similarly horrific proposal next year, please allow me to offer some definition ideas, which they might include, you know, so voters understand better.
Let’s start with defining non-economic injuries. That’s easy. What is truly valuable to us as human beings is our ability to live life on a daily basis free of any debilitating physical problems that diminish our capacity to enjoy life and compromise our sense of self-worth, dignity, and integrity. Take that away? These are non-economic injuries. Things like blindness, mutilation, severe pain, trauma, suffering, or damage to someone’s reproductive system.
“Caps” on non-economic damages are “one-size-fits-all” limits that an injured person – even a child - can receive from a judge or jury, irrespective of what the evidence presented at a trial proves compensation should be. Caps treat a parent who lose a child the exact same way as they treat someone who loses a leg or is blinded, with no consideration of any individual circumstance. They apply no matter how much merit a case has, or the extent of the misconduct of a hospital, doctor or nursing home. They apply regardless of the severity of an injury.
When a state caps non-economic damages (as opposed to economic damages, such as lost wages), they are valuing the destruction of someone’s life based on what that person would have earned in the marketplace but for the injury. The lives of low wage earners, children, seniors, and women who do not work outside the home, are thus deemed worth less than the life of a corporate executive. They say to seniors that despite having spent their lives paying their dues and playing by the rules, now, due to the negligence or abuse of a wrongdoer, their lives are worth an arbitrary, trivial amount.
Also, as University of Buffalo Law Professor Lucinda Finley has written, “certain injuries that happen primarily to women are compensated predominantly or almost exclusively through noneconomic loss damages. These injuries include sexual or reproductive harm, pregnancy loss, and sexual assault injuries.” And, “[J]uries consistently award women more in noneconomic loss damages than men … [A]ny cap on noneconomic loss damages will deprive women of a much greater proportion and amount of a jury award than men. Noneconomic loss damage caps therefore amount to a form of discrimination against women and contribute to unequal access to justice or fair compensation for women.”
Finally, let me offer you the words of the late Dr. Harry J. Metropol, a prominent South Carolina surgeon who testified before the South Carolina House Judiciary Subcommittee supporting caps on non-economic damages in that state. First (for background) is the story of Wisconsin resident Linda McDougal, who received an unnecessary double mastectomy after being mistakenly told she had cancer due to a pathology lab mix-up. She never had cancer. She described some of the suffering and trauma caused by this unnecessary double mastectomy, including how doctors had to prepare her body for reconstructive surgery:
I was warned ahead of time that they would torture me, that this was going to be torture. And it was. The most painful part was probably lifting [the] chest muscles off the chest wall. They have to separate them. It’s a terribly painful process.… The worst part is every day getting in the shower, glancing down there, looking in a mirror, seeing what’s not there. I’ve got 31 inches of scars on my chest.
Linda’s economic damages were minimal – insurance covered her many surgeries. But her non-economic injuries, including her physical pain and impaired life due to this senseless mutilation, were almost unimaginable. Dr. Metropol was asked specifically about Linda and here’s what he said:
[S]he did not lose her life and with a plastic surgeon she can have breasts reconstructed better than those which came before. It won’t be National Geographic hanging to her knees. It will be nice, firm breasts.
So yeah, don’t forget to say things like that. Oh, one more thing. Almost forget. Caps allow the insurance industry to make out like bandits. Take California, which has capped non-economic damages since 1976. A few years ago, the medical malpractice insurance industry became so bloated due to the cap, that “as little as 2 or 3 percent of premiums [were] used to pay claims” and “the state’s biggest medical malpractice insurer, Napa-based The Doctors Company, spent only 10 percent of the $179 million collected in premiums on claims in 2009.”
Hope that help. And hope it all fits on the ballot for next time. (Better not be a next time.)