1. Non economic damages caps are most detrimental to elderly persons (and poor persons). If a state legislature enacts caps on noneconomic damages then an injured patient can only recover actual damages and a predetermined amount for pain suffering and punitive damages. Medical malpractice attorneys would understandably accept only those cases where the injured patient lost income or wages as a direct result of the medical negligence. Who does not have income or wages? Retired persons and poor people.
Dave Stewart’s 72-year-old mother went to Stanford University Medical Center for double knee-replacement surgery in April. Four days later, she was dead.
To Stewart, an anesthesiologist, it seemed a classic case of medical malpractice. After the operation, his mother developed sharp abdominal pain that she described as “10 on a scale of 1 to 10,” according to her medical records.
The hospital failed to diagnose the cause of her pain and continued to treat her with narcotics. Her vital signs became unstable and she was moved to the intensive care unit, but she died of complications from an untreated bowel obstruction. State regulators cited the hospital in the case this fall.
Stewart and his two sisters decided to sue, and they approached two dozen lawyers. One after another declined to take the case, always for the same reason: It wasn’t worth the money.
In 1975, California enacted legislation capping malpractice payments after an outcry from doctors and insurers that oversized awards and skyrocketing insurance rates were driving physicians out of the state.
The law limited the amount of money for “pain and suffering” – usually the physical and emotional stress caused from an injury – to $250,000. There is no limit on what patients can collect for loss of future wages or other expenses.
Over the years, it has been easy to quantify the effects of the law, known as the Medical Injury Compensation Reform Act, or MICRA. In the years since the law was enacted, malpractice premiums in California have risen by just a third of the national average, and doctors say the law now helps attract physicians to the state. Proponents also say it discourages frivolous lawsuits.
It’s been harder to tally the law’s costs. Critics say it is increasingly preventing victims and their families from getting their day in court, especially low-income workers, children and the elderly. Their reasoning: The cap on pain and suffering has never been raised nor tied to inflation.
Meanwhile, the costs of putting on trials are often paid by attorneys and continue to rise each year. That means those who rely mainly on pain and suffering awards – typically people who didn’t make much money at the time of their injury – are increasingly unattractive to lawyers.
Several states have set their malpractice caps considerably higher than California’s because of worries that they affected poorer patients the most. Some state courts have begun to examine the fairness of their malpractice laws, especially those not tied to inflation. California lawmakers have rarely reconsidered the state’s malpractice legislation.
Yet a Times analysis of state court records, physician payment data and insurer financial records suggests that the cap is increasingly preventing families such as the Stewarts from getting their day in court.
http://articles.latimes.com/2007/dec/29/business/fi-malpractice292. Elderly people (over age 65) have been forced into a universal health care system. It has been my experience that medical care professionals tend to be overly focused on "altered mental status" of the patients over age 65.
Suffice it to say that I have personally undergone treatment for invasive cancer. I had strong chemotherapy and "chemo-brain." I was grumpy and sleepy. But, when a 40 year old chemotherapy patient is tired, uncooperative and forgetful, medical care professionals chalk the "altered mental status" up to chemotherapy and the stress of having cancer.
In contrast, when a 75 year old chemotherapy (i.e. my dad) has tremendous skin sores, UTI, tremendous level of infection, medical care professionals perform repeat MRIs, CTs and offer the family (i.e. me) the option of skilled nursing care. Medical care professionals are less sympathetic of the "altered mental status" of a 75 year old chemotherapy patient. That elderly patient must have dementia.
Let's put it this way, when I was in the hospital with a chemotherapy related infection, I did not have physicians and nurses speaking in face like I was deaf and asking me repeatedly if I knew where I was and what year it is.
In addition, chemotherapy caused a mess of my mouth. The physicians focused on my mouth. In contrast, dad presented to the hospital on a Friday. The physicians chalked his difficulty talking to dementia or a stroke. It took from Friday to Tuesday for someone to actually look in the man's mouth!
My dad is at Duke University Hospital. And after I advocated for dad and the Hospitalists allowed the clinic physicians to be involved in dad's care, the course of dad's treatment has been caring, competent and effective.
My friend has a dad at Carle Clinic/Foundation Hospital in Urbana, Illinois. OMG. I have been through the Carle Clinic issues with Dr. Chris Dangles. Dr. Dangles is not my friend's doctor. But the situation is equally frightening.
My dad and my friend's dad entered the hospital at the same time (my dad at Duke and my friend's dad at Carle Clinic). There were some similarities in our dads' treatment. The difference in outcome was frankly the willingness of the family to advocate for these men.
a. Both dads were weak.
b. Both dads were given "swallow tests" because the physicians thought that they had "altered mental status," were weak and might forget how to swallow.
c. Both dads' physicians told the respective families that the dad should leave the hospital and go to skilled nursing care.
I told the Duke doctors that I prefer the focus be on my dad's infection. I told the Duke doctors that there will be no nursing home for my dad because (among other reasons), dad's urologist told me that nursing homes tend to keep catheters in older men for convenience.
My friend did not advocate for his elderly father at Carle Clinic/Foundation Hospital. My friend allowed the physicians at Carle Clinic/Foundation Hospital to keep his dad for the requisite three (3) days before the transfer to a nursing home so that Medicare would pay for the nursing home care.
I guess my friend forgot that Carle Clinic/Foundation Hospital sent his grandmother (who was perfectly healthy and strong until she fell and broke her hip) to Carle Arbors Nursing Home. My friend's grandmother died in the Champaign, Illinois nursing home of infected bedsores.
It does not seem that the United States' mandated universal health care for the elderly has worked very well. It seems that medical care providers are making health care decisions based on economics rather than the patient's best interests.
The experience of Medicare clearly demonstrates that universal health care does not guarantee proper health care. From treatment of my dad after general anesthesia to the relentless focus on "altered mental status" to the exclusion of other reasonable explanations, it becomes evident that we have a medical community that does not have the patience or competence to care for older Americans.