Hot Coffee also followed the case of Colin Gourley, the son of Nebraska parents. Mom was pregnant with twins. Night before an appointment, babies were not moving as usual and mom brought this up at appointment. Mrs. Gourley’s doctor said everything looks good but failed to examine her with an ultrasound and, thus, was unable to notice that she only had one placenta (when standard of care for twins is to ensure that there are two placentas). After some time, Mrs. Gourley was sent to the ER, where standard of care was to perform a c-section within 10 minutes. Unfortunately the doctors did not get to her for two hours…at which time Colin was not getting much oxygen. Nurses testified that they had the operating room ready within 10 minutes, but the doctor was nowhere to be found. As an aside, this surgeon had been sued for malpractice several times before.
At trial an economist that explained that baby Colin would need $6,000,000 to receive adequate medical care for the rest of his life (had special needs, would be mentally delayed his whole life and would require additional surgeries). Jury awarded $5.6 Million along with a finding that the doctor’s negligence did, in fact, cause Colin’s brain injury. But Nebraska had fallen prey to the tort reform movement and had enacted caps on all damages. As a result, the $5.6 Million dollar verdict was automatically reduced to $1.25 Million.
The sad reality is that the doctor’s insurance company, which otherwise would have covered Colin’s medical needs for the rest of his life, simply shifted that burden onto the American taxpayer. At some point, the reduced amount of money from the verdict will run out and Colin will have no choice but to go on Medicaid.
Colin had undergone ten surgeries as of the filming of the documentary.
The legislators who pass tort-reform bills are heavily influenced by the virtually unlimited resources and funds that come from the member corporations of the US Chamber of Commerce. The US Chamber spends so much money trying to convince legislators that they know better than juries as to the proper amounts of damages.
As background, there are three types of caps on damages:
- Caps on punitives
- Caps on non-economic damages
- Caps on both (or entire amount a plaintiff can get)
Caps are an arbitrary number that bear no resemblance to the various ways and severity in which one can be harmed, due to the negligence of another. If you are blinded, disfigured, if a woman’s reproductive system is shut down…much of the effects of these injures are non-economic, yet few would say you should have no right to be compensated for it.
The fallacy, in the medical malpractice context, is that caps will keep cost of medical insurance down, which will in turn reduce cost of practicing medicine. But the data shows that in states that have enacted caps on medical negligence, insurance rates mostly have NOT gone down by any significant measure. In 2008, the average liability premium for doctors that practice medicine in states with caps was $46,336. In states without caps….$45,449.
It was pointed out that, in states where insurance companies (for-profit institutions that have shareholders) benefit from caps….there is no rule that savings have to be passed down to policy holders.
The bottom line is that caps on damages take a jury’s ability to determine fair value of cases. But, the right to have a jury of one’s peers, and not legislators, determine questions of fact in the courtroom is guaranteed by the U.S. Constitution (in the 7th amendment to the Bill of Rights). In the 1980s judges deemed tort reform laws as unconstitutional on a regular basis. What happened?