A key legislative panel in Nevada heard emotional testimony from more than a dozen Nevada citizens Monday who feel they have been wronged by Nevada's doctors and medical institutions and want the $350,000 cap removed for pain and suffering damages in medical malpractice lawsuits.  The next stop for the bill to amend medical malpractice caps is a vote in the full Assembly.

What are Medical Malpractice Caps:

Medical malpractice caps are an attempt by the medical malpractice industry to limit the amounts of money a jury finds just and fair.  Medical malpractice caps are mechanisms of law that limit the amount of money paid to the victims of medical malpractice for the general damages in any given case.  There are essentially two types of damages in a case.  Damages are the amounts of money that a wrong-doer must pay.  They are called special or economic damages and non-economic or general damages.  We will use the terms special and general damages.

What are Special and General Damages:

Special damages are the hard costs of medical malpractice.  They are the costs of care that an injured person might need for the rest of their lives to care for the injury caused or created by the medical malpractice.  Examples might include lost wages of the person injured, future lost wages of the person injured, cost of past medical care and the costs of future medical care such as aventilator, 24 hour nursing care, special beds and other medical supplies. Thesespecial damages can add up to millions all by themselves.  But they are only one type of damages.

The other type of damages that a jury needs to compensate the victim of medical malpractice for is general damages.  General damages are less tangible than special damages but often add up to much more.  General damages are sometimes called pain and suffering damages but that term fails to account for all of the general damages.  Assume a vibrant man, a great father, a loving uncle and terrific husband is severely injured as the result of medical malpractice.  The special damages outlined above account for the hard costs but what about the other costs rising from not being able to be the father and husband he once was and what about the loss of the family's father and husband.  He may be alive but he is a fragile shell of his old self.  He is no longer vibrant and no longer takes part in the lives of his family like he once did.  The children are denied the friendship and guidance of their father.  The wife looses her confident, her best friend and her partner in the journey we call life.  These are the real damages.  These are the damages that medical malpractice insurance companies are able to limit and have done for some time.  That cap on general (or real damages if you prefer) is what people in Nevada want removed or increased.

Why It Is Wrong to Cap Medical Malpractice Damages:

Juries are the best and perhaps the only mechanism invented to ensure that people's rights are not trampled. Consider these quotes:

• THOMAS JEFFERSON (1789): I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.
• JOHN LOCKE (Second Treatise of Government): "Yet the legislative being only a fiduciary power to act for certain ends, there remains still in the people a supreme power to remove or alter the legislative, when they find the legislative act contrary to the trust reposed in them....And thus the community perpetually retains a supreme power of saving themselves from the attempts and designs of any body, even of their legislators, whenever they shall be so foolish or so wicked as to lay and carry on designs against the liberties and properties of the subject."

People - not political action committees, not special interest groups, not lobbyists and least of all not powerful well-funded medical malpractice insurance companies are the ones that should determine how much money a victim of medical malpractice should receive from the wrongdoer.  There should not be some arbitrary manipulation of the number awarded by a jury meant to compensate the victims of medical malpractice.  Oftentimes a jury does not even know that a cap exists.  For example a jury might find for the plaintiff in a medical malpractice case and award a verdict of $2 million in special damages and $2 million in general damages - only to have their verdict for the general damages reduced to some arbitrary cap value - currently $350,000 in Nevada and currently $490,000 in Utah.

Medical Malpractice Caps in Utah:

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