Medical Malpractice Caps in Action: What’s a Discarded Kidney Worth?
Picture yourself in the hospital with life threatening renal disease. Doctors tell you that your brother is a perfect match for a kidney transplant. Picture yourself as the brother. You agree to donate a kidney to save your sister. You both go under anesthesia. When you wake up, you learn that the surgery to remove the kidney was a success. The surgery to transplant the kidney, however, was not so successful. Unfortunately, hospital employees accidently discarded the healthy kidney, disposing of it with other medical waste. How do you measure the cost of this error? How does one value a case involving this sort of medical negligence?
This is a true story. It happened to Paul Fudacz Jr. and his sister Sarah A. Fudacz in August of 2012 at the University of Toledo Medical Center (UTMC). The entire Fudacz family filed suit against UTMC in July of 2013 (Ohio Court of Claims, case no. 2013-00441). They recently settled the case. Sarah Fudacz, et al. v. The University of Toledo Medical Center; 2014 Jury Verdicts LEXIS 4376 UTMC, which did not admit liability in settlement documents, agreed to pay $650,000.00 to the Fudacz family. According to a May 29, 2014 news story in the Toledo Blade, plaintiff's counsel explained that the settlement was restricted by state-imposed limits because the incident happened at a public facility. Attorney James E. Arnold explained, “I think they are disappointed the state imposes those types of limitations in these types of cases,” he said. “It goes to the old sovereignty that you can't sue the king unless the king wants you to, and that's who the state is in this case.”
For the last several decades, the issue of caps in medical malpractice suits has been hotly debated in this country. The American Bar Association opposes a federal malpractice cap. http://www.abajournal.com/news/article/aba_opposes_federal_medical_malpractice_bill_that_caps_pain_and_suffering_d . The Indiana legislature recently voted to increase the amount of caps in medical malpractice cases. A few years ago, the Florida Supreme Court struck down caps in medical malpractice wrongful death suits. Meanwhile, the Kansas Supreme Court upheld medical malpractice caps in 2012.
The plaintiffs’ bar and consumer rights groups argue for elimination of caps and the constitutional right to a jury trial. The defense bar, medical providers, and insurance groups argue that the caps help keep down spiraling and unnecessary medical costs associated with medical negligence claims. And in front and center of the debate are the individual cases involving people like the Fudacz family. We can use tools like MedMal Navigator, http://www.lexisnexis.com/en-us/products/lexisnexis-medmal-navigator.page, to assess the value of the cases we handle. That is easy. But as legal professionals, we must look to underlying issues of policy and fairness and ask the truly hard question: “How do we want to measure the cost of this error?”
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