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Thursday
May032012

Tort Reform – Caps on Damages Cause More Pain than Good

Personal Injury Attorney Los AngelesInjury Attorney San Fernando Valley 

 

by David B. Bobrosky
(818) 907-3254

 

Some states put “caps” on damages awarded by juries in tort, or personal injuries cases.

A “cap” is a law that puts an arbitrary ceiling on the amount of damages a judge or jury can award in a case, regardless of the facts or evidence presented in a specific case. The types and amounts of caps vary by state, and can be imposed on parts, or all aspects of an award--- including compensation for actual medical costs, loss of earnings, pain and suffering, and/or punitive damages.

 Personal Injury AttorneyCaps were recently in the news again because of the Virginia Tech shooting case. The Virginia Tort Claims Act caps jury awards at the maximum limits of a liability policy. This is why the parents of two students who were killed in the Virginia Tech shootings in 2007 may only be awarded $200,000, even though the jury who heard the case awarded $8 million to the two families.

 

Other Painful Outcomes in “Tort Reform”

 

In Nebraska, there is a total cap of $1.25 Million on all damages. This includes pain and suffering, as well as money for past and future medical expenses.

In a case featured in the documentary Hot Coffee, a couple who gave birth to twin sons alleged that their doctor failed to identify a problem during the mother’s pregnancy, despite multiple complaints by the mother. When another doctor discovered the problem days later, the mother was rushed to the hospital where a further delay of an emergency c-section was alleged to cause further damage to her son.

Doctors testified that the young boy would need life-long medical care, including multiple surgeries. A jury awarded the family $5.6 Million for these expenses. Despite the jury’s findings, the award was reduced to $1.25 Million due to the arbitrary cap on damages. Thus, the family will not have sufficient money to care for their son. The burden will now most likely fall to the public.

Graphic courtesy of Consumer Attorneys of CaliforniaHere in California, we are limited by MICRA, or the Medical Injury Compensation Reform Act of 1975, which caps non-economic damages in medical malpractice cases at $250,000. This is a cap that has not increased since its inception, despite nearly 40 years of inflation. If it had increased, it should be over $1 Million by now.

When Steven Olsen was two, he tripped and fell on a sharp stick that impaled the front of his mouth, face and sinus cavity. His parents took him to Children's Hospital of San Diego where the doctors repaired the damages and tested for infection, and then sent him home.

A few days later, Steven came down with a fever. His parents took him back to the hospital and requested a brain scan in light of his recent accident. The doctors ignored the request and diagnosed meningitis. Unfortunately, Steven had a ruptured abscess caused by the accident with the stick, and suffered serious brain damage as a result.

Plaintiffs alleged that had the physicians checked the lab results of the infection tests, or had they run a brain scan as requested, it was likely Steven would not have suffered the brain damage.

The jury awarded the Olsens just over $7 million in pain and suffering, but the $250,000 MICRA imposed cap reduced that figure to less than four percent of the intended award.

 

Caps Do Not Prevent So Called “Frivolous” Lawsuits

 

Proponents of Tort Reform cite "frivolous" lawsuits, high insurance premiums and better access to health care as reasons to put limits on damages.

But the truth of the matter is that arbitrary caps do not result in reduced premiums, but rather increased profits for the insurance companies. This is why the leaders of Tort Reform are generally the insurance companies.

Personal injury attorneys are not against businesses making profits, or doctors. In fact, my firm does not even handle medical malpractice cases. However, arbitrary caps do not do anything to prevent so called “frivolous” lawsuits – they merely deprive the most seriously injured and damaged people compensation awarded by a jury of their peers.

 

David B. Bobrosky is an Injury Attorney who advocates for the rights and safety of individuals. Contact him via e-mail: dbobrosky@lewitthackman.com.

 

 
Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

 

 

Tuesday
Feb142012

Damages and Compensation in a Personal Injury Lawsuit

Injury AttorneyInjury Attorney Los Angeles 

 

by David B. Bobrosky
(818) 907-3254

 

I speak to many potential clients on a weekly basis, many of whom have suffered a car accident injury. The most common questions I hear are “what am I entitled to if I have been injured in an accident?” or “what is the driver responsible to pay after a car accident?”  

In this post, I am going to explain the compensatory damages available to you if you have been involved in a car accident.  

Compensation for InjuryWe commonly group the types of damages into two classes: 

  1. Economic Damages
  2. Non-Economic Damages

 

Economic Damage Compensation

 

These damages are what we typically call “out of pocket” expenses. The most common types of personal injury damages in this class include: 

  • Property Damage - This category includes those to your vehicle, and any personal items in the vehicle that were damaged or destroyed in the accident. 

  • Loss of Use Damages - These are damages for not being able to use your property because of the accident. The most common item in this category is the amount you spend on renting a car. 

  • Medical Expenses, Past and Future - If you have health insurance, this is more than your co-pay. It includes the full amount of your bill. In some states, such as California, this is limited to the amount paid by your health insurance company.

    This category, if you have health insurance, is essentially recovered to pay back your health insurance company since the bills were incurred due to the negligence of another. Although your attorney can usually negotiate a discount off of the reimbursement since you are essentially collecting the funds for the health insurance company. 

  • Loss or Earnings - If you missed time from work and/or will miss time in the future, you are able to recover for that lost time. If you own your own business and can prove that you lost profits, or will lose profits in the future from the accident, then you can recover for these as well.

Pain and Suffering: Non-Economic Damage Claims

 

Wrongful Death LawyerThese damages are what we typically call “general damages.”  They are known by most people as damages for “pain and suffering.” 

Non-economic damages most often include compensation for: 

  • Physical pain, impairment and disfigurement from physical injuries sustained in the accident. 

  • Mental suffering and emotional distress related to the accident and physical injuries. 

  • Loss of enjoyment of life due to the injuries suffered. 

  • Grief, anxiety, humiliation and inconvenience from the accident. 

Non-economic damages are often the biggest damages in a case. If you’ve been burned by a defective product or attacked by a dog, the medical expenses may not be astronomical because such injuries do not typically require future medical care. 

However, the general damages for the disfigurement and emotional distress from the permanent scarring for the rest of your life will be significant. 

Likewise, if you are catastrophically injured or if a loved one is killed in an accident, the non-economic damages for your loss of enjoyment of life and grief over your loss will be the major part of your personal injury settlement, or claim at trial. 

The claims discussed above are not an exhaustive list of the damages available in every case, but they are the most typical. And certainly, not all of these damages apply to every personal injury case. But this should give you a good idea of what’s available to recover if you are unfortunately injured by the negligence of someone else. 

David B. Bobrosky is an Accident Injury Attorney in our Personal Injury Practice Group. You can reach him via e-mail: dbobrosky@lewitthackman.com, or by calling 818.990.2120.

 

 
Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

 

LEWITT HACKMAN | 16633 Ventura Boulevard, Eleventh Floor, Encino, California 91436-1865 | 818.990.2120