A CAP in a medical malpractice case is a legally set artificial ceiling on the amount of recovery (money damages) a person can receive in a lawsuit. A somewhat common number for a CAP is $250,000.00. In general, a case may be capped in total or it may be split into two parts which are economic (ED) and non-economic (NED) damage CAPS.
A person who is injured by the health care system suffers two damages every time and they are; damages to the person otherwise known as some injury to the body, and damages to a person’s finances. The damages to the person are pretty obvious such as if a doctor gives the patient a drug which the patient is allergic to and the patient contracts asthma from this for instance. This is the non-economic damage to the person. Going now to the financial damages (economic damages) it follows that if a person gets sick or injured from medical malpractice then he has spent money improperly by paying for proper care but not getting the proper care he was supposed to get. This is not any different than if a customer paid for a new color T.V. but it only worked in black and white. In the medical situation one further has damages given that he/she may lose time at work or need other help and so on. These are the economic damages. The law says that a person who is harmed by another is entitled to be totally compensated.
There are a number of elements to economic damages. In general a harmed patient is entitled to be reimbursed for pain and suffering, loss of work, costs and fees attendant to the harm, disfigurement and the loss of a normal life. These are very difficult to quantify for Judges and Juries alike. It is easily known what costs and fees are as they can be simply added up. But what is the value of being able to play baseball with your six year old son or the value of being able to drive your own car and so on? The point is that losing such parts of one’s life are very personal and very dear. It is admittedly very difficult to expect an average person on a jury to know how to value such things. Arguably, there probably is no amount of money that an average person would take in place of having health and family.
But, unfortunately, the legal system cannot physically undo the damage that has been done and has nothing more to give than money. Juries, often times would award vast amounts of millions of dollars to some victims of catastrophic injury. The question is this right and is this related only to the facts and the law or is this the result of pure sympathy. The problem is that the system doesn’t have the funds to pay all of this. If the doctors can’t get medical malpractice insurance because the carriers are busted by huge court awards then we either are left with a State with no doctors or medical costs have to rise proportionally.
Some States have had to deal with this dilemma and they have solved it by putting a CAP on non-economic damages only. So, the jury will come back with a decision and an award. They will itemize the award and they will then be dismissed. The Judge then enters orders on the jury verdict giving the injured party the full amount of economic damages no matter what they are so that medical care past and future can be paid for of course. The Judge however will then only order the patient to receive non-economic damages up to a maximum of $250,000.00. If the jury awarded $10M in NED then all but $250,000.00 is wiped away.
In the State of Illinois, where MedWitness, Ltd. is located, our Legislature has twice tried to enact CAPS and our Supreme Court has twice struck them down. The Supreme Court held that CAPS in Illinois were unconstitutional for the following reasons. CAPS invade the province of the jury where the jury is charged with determining damages as the legal triers of the facts after hearing all of the evidence in a case. In short, how can the Legislature, in the absence of knowing the facts of any one case, be in a better position to determine what happened years before the case even came up than a jury? This speaks to the right of trial by jury.
CAPS improperly favor one set of victims over another and thus deny all people the equal protection of the laws. The issue here is why should a person who suffers the exact same serious injuries but from different sources be treated so differently? In other words, if the injuries are suffered in a car accident the victim would get whatever the jury awarded. But if those exact same injuries result from medical malpractice then the victim gets a vastly reduced amount for no reason other than this law. This results in two classes of victims and two classes of injurors. The result is that a doctor gets punished much less than a motorist and a victim of the doctor gets compensated much less than a motorist. This is an Unconstitutional result where the Constitution demands that all persons are equal and that for every wrong there is a right.
CAPS improperly violate the separation of powers doctrine. In short, the Legislative branch of Government may not invade the Judicial branch of Government. If the Legislature were to have the power to command what courts do and don’t do then we shall lose one of the very pillars of our Democracy. Our Democracy depends on a free court system whose decisions are not only respected but enforced as is. A major difference between the U.S. and Dictator nations is the presence of a free judiciary. This does not mean that the judicial branch of Government has to ignore the other branches but it is the branch that is trusted to do the right thing as opposed to the most politically expedient thing. Judges are a bit more removed from the political process for the very reason that we need them to be independent to do what’s right.
I cannot say how all other States got around what the Illinois Supreme Court has concluded. It may be that they have vastly different Constitutions but I seriously do doubt that. I cannot say that I see a mechanism to legally impose CAPS (AKA - Tort Reform) but I do see why States are concerned. The matter of Mayo vs. Wisconsin Injured Patients et al. case in our neighbor, The State of Wisconsin, is somewhat helpful in demonstrating how far their Supreme Court will bend in its use of logic to get a politically expedient result it appears to desire.
In short the Wisconsin Supreme Court upheld CAPS in Wisconsin for non-economic damages. They did this by sounding very legal and logical but the end result is anything but logical. In essence they held that they, as a separate and distinct branch of Government (Judicial Branch), have to listen to the Legislative Branch of Government and that the only way anyone can change the result they want is by presenting a case that is so legally powerful that the criminal standard of conviction to take a person’s freedom away, i.e. beyond a reasonable doubt, has to be applied to that civil case to prevail!
Moreover, the case they used to make these pronouncements was not even on point as it compared equal protection of the laws wrong. The comparison was made between two victims of medical malpractice at different damage levels as opposed to a victim of medical malpractice and a victim of personal injury. The decision of the Illinois Supreme Court is much more eloquently reasoned and much more logical. The Illinois Supreme Court made a tough decision which was not politically expedient but legally correct. This is what a Supreme Court should do. It is up to the Legislature to come up with a Constitutional method to solve State problems. The Wisconsin Supreme Court failed its people badly here. Citizens of Wisconsin would be well advised to get their medical care in Illinois where there is full physician accountability and proper coverage if something goes wrong.
Perhaps, there needs to be some sort of national coverage to make sure both that people get medical care while being also covered for any mistakes which we all know come with being Human. It is after all unfair to expect the medical profession to solve the whole problem on their backs. I can say this, I advise my friends to get medical care in a State that does not have CAPS. This includes Wisconsin Supreme Court Justices. Should one of them suffer a serious injury in their State I want to be around to read the reasoning of their next decision on point. Just as I am looking forward to read how they handle the lame duck recent issue. One case involves a Human the other a Duck and whether they should enjoy equal protection of the laws.