Utah Med Law

There is a despicable thing going on in Winkler Texas.  An experienced long-time nurse thought she was doing the right thing when she reported a doctor in rural Texas for what she thought was unprofessional and dangerous practice.  She did it confidentially and she did it correctly by reporting to the Texas Medical Board that licenses and disciplines doctors.  Now she is on trial for "misuse of official information" and facing jail time.  I have blogged previously about this case. 

Nurse Mitchell is 52, the wife of an oil field mechanic and mother of a teenage son.  She thought she was doing the right thing.  Not only did she think she was doing the right thing but she was upholding a long-time professional obligation that came as part of her nursing heritage.  Nurses are defined in many ways and in different ways depending upon the circumstance but one unchanging definition is that nurses are advocates for their patients.

In this cynical world doctors are oftentimes as being too concerned with the almighty buck.  It is the rub of their profession that they are well paid for what they do.  It is because they are well paid we have high expectations.  We expect doctors to be above it all somehow.  Doctors are supposed to care about patients and the money comes as almost a secondary gain.  That can hardly be the expectation when your doctor solicits his patients to purchase $40 per bottle herbal remedies as appears to be the case here - at least in part. 

This case is a travesty of justice and rings of small town politics and shenanigans between a local doctor and a sheriff conspiring to retaliate against a nurse for doing the right thing.  To convict Mrs. Mitchell, the prosecution must prove that she used her position to disseminate confidential information for a “nongovernmental purpose” with intent to harm Dr. Arafiles. Mari E. Robinson, executive director of the Texas Medical Board, has warned in a blistering letter to prosecutors that the case will have “a significant chilling effect” on the reporting of malpractice.This case is also starting to get wide-spread coverage in The New York Times.

The bigger question here is do we really want to chill nurses from reporting bad doctors or bad medical facilities.  Even if Nurse Mitchell was acting vengefully do we want other nurses to forgo reporting for fear of loosing their job, retaliation and possible criminal prosecution?  I for one hope not!

The special interest groups are at it again at the Utah Legislature.  The health insurance industry, medical malpractice insurance companies, health care facilities and doctors are again putting the patient second to their own interests.  

The special interests are trying to:

1. Limit the time which a person injured by medical negligence can sue for compensation;
2. Reduce the amount of money the injured can receive when they are hurt by negligent health care;
3. Make others than themselves pay for the harm they have caused;
4. Decrease the fees paid to attorneys who represent injured people making it less likely that smaller cases will recover compensation for their injuries;
5. Changing the rules of the game to make it tougher for injured plaintiffs to have their day in court; and
6. Cut off avenues of recovery where one health care provider looks like he or she or they are working for someone else again leaving the injured plaintiff out in the cold.

I represent people injured as a result of medical negligence.  I have seen the injuries, the heartache and the pain.  These are real people I am talking about.  If not people you now know they will be people will know.  They are your friends, family or loved ones who may be injured, oftentimes in very personal and lifelong ways, by the doctor who refuses to listen or the facility that treats patients more like a processing plant than a  caring institution.

Personally I think these measures that the special interest groups are trying to pass into law are reprehensible.  Professionally, as an attorney who represents people injured by medical negligence, I think this legislation and other legislation like it is a big money grab by the special interest groups. 

Not a lot of people are aware that there exists a national data bank that keeps track of incompetent and unprofessional health care practitioners.  The data bank is known as the National practitioner's Date Bank.  According to Tulsa World in their recent article titled "20 Years of Malpractice Data Still Mostly Closed to Public" the data base has information on some 460,000 medical malpractice lawsuits whose judgments total $69.7 billion.  The article also states that the data base includes information on 23,788 patient deaths, 8,100 major permanent injuries and 3,896 cases that resulted in quadriplegics, brain damage or lifelong care.

What is startling is that the greater amount of the information held in the data bank is not available to the public.  

Patients make decisions everyday about their health care every day.  To make the best decision possible people need to have all of the available facts.  If the surgeon you are considering cutting into your abdomen is a repating offender and been found liable in repeated medical malpractice cases do you think that information would be critical in your decision process?

There are many reasons advanced by the American Medical Association about why the information needs to be kept secret.  The primary reason is that they claim the information in the data base is inaccurate.  Better some information than no information at all I say.  

There is a paternalistic attitude in medicine that permeates almost all aspects of care.  There is this attitude that somehow patients can not be trusted to make decisions about their own health.  In this day of information consumers of health care are becoming sophisticated buyers and need the information on which to base those decisions.  

Furthermore, most physicians believe that a relatively small number of thier profession account for the vast amount of medical negligence.  If that is the case then teh AMA is missing the mark in policing their own profession.  

Health care providers in Utah, both physicians and facilities, have deep pockets.  Doctors wield that power through lobbying efforts of UMIA (Utah Medical Insurance Association) and UMA (Utah Medical Association).  The health care facilities, most notable Intermountain Health Care (IHC), employ their own lobbyists. 

Every year, year after year, they draft legislation in secret without the input of consumer groups or trial lawyers who represent people injured as a result of medical malpractice.  Every year they draft proposed legislation to further protect their interests and spring it on the public when the legislature is in session.  Every year they want more protection.  My question is who cares for the injured people?  If you doubt that health care providers are incrementally getting more and more protection consider the following statutes that protect health care providers and stop the injured from receiving full and fair redress when injured as a result of medical malpractice:

Limitation of award of non-economic damages in malpractice actions. §78B-3-410

Caps on Damages for Loss of Consortium §30-2-11(7)

Caps on Governmental Immunity Act total damages in most circumstances §63G-7-604

Statute of Repose (claims expire even if patient unaware of injury such as undiagnosed cancer) §78B-3-404

Short Statute of Limitations §78B-3-404

Prelitigation Screening Mandatory Before Lawsuit §78B-3-416

Abrogation of Collateral Source Rule (negligent care provider gets the benefit of insurance that the patient paid for or that taxpayers provide) §78B-3-405

Periodic Payment of Future Damages Delaying by Years or Decades the Patient’s Receipt of an Award §78B-3-414

Arbitration Agreements Enforced §78B-3-421

Restriction on Informed Consent Claims §78B-3-406

Restriction on Warranty, Guaranty and Contract Claims  §78B-3-408

Limits on Use of Admissions of Fault §78B-3-422

Increased Burden of Proof for victims for all Emergency Department Care §58-13-2.5 

16.  Notice of Intent Required Before Lawsuit §78B-3-412

Prohibition on Access to and Use of Peer Review, Incident and Credentialing Materials §26-25-1

Limitation on Therapist’s Duty to Warn §78B-3-604

Immunity and Extension of Good Samaritan Act and Health Care Providers Immunity from Liability Act to nurse practitioners §58-31b-701

Immunity for 911 Calls §69-2-6

Immunity for Emergency Medical Assistance (including paid services) provided by governmental employees §63G-7-302(5)(s)

Immunity for care provider who renders care at scene of emergency without duty to respond §58-13-2

Immunity (except for gross negligence or willful misconduct) for uncompensated care §58-13-3

Immunity for certain care providers during emergency declarations §26-49-501

Immunity to retired health care provider volunteers if care is uncompensated §58-81-104(5)

Medical malpractice cases in Utah are few and far between. Utah Code section 78B-3-406 addresses informed consent and is reproduced at the end of this article.  The problem with law that removes the onus for doing what is right is that those responsible for doing what is right become lazy and fall into a practice that is something far less than what should be required.  This is the case with the Utah informed consent law.

In a recent article in the New York Times Health Section an article titles 'Treating Physicians as Partners, by Way of Informed Consent' by Pauline Chen points out exactly how excess protection allows physicians to practice in what I would call a substandard way.  Doctor Chen references a study reported in the Journal of the Association of American Medical Colleges that talks about involving the patient (novel concept) in the consent process called an informed consent conference versus a physician directed consent. 

The Times article quotes Doctor Kodish, senior author of the study, as saying about standard consent documents “But the documents are at best props in the theater of informed consent. It’s the process itself that is really important.”  There is a great shift in the physician / patient relationship over the last 40 years from one of paternalism to one of partnership according to Doctor Timothy Pawlik the senior author of a recent review of informed consent in surgery and an associate professor of surgery at Johns Hopkins University School of Medicine in Baltimore.

In my opinion the protection afforded to physicians and health care facilities in Utah has contributed to the deterioration of the informed consent requirement.  Are patients truly informed?  I think not - at least not most of the time!

Failure to obtain informed consent -- Proof required of patient -- Defenses -- Consent to health care.

       (1)  When a person submits to health care rendered by a health care provider, it is presumed that actions taken by the health care provider are either expressly or impliedly authorized to be done.  For a patient to recover damages from a health care provider in an action based upon the provider's failure to obtain informed consent, the patient must prove the following:
       (a)  that a provider-patient relationship existed between the patient and health care provider;
       (b)  the health care provider rendered health care to the patient;
       (c)  the patient suffered personal injuries arising out of the health care rendered;
       (d)  the health care rendered carried with it a substantial and significant risk of causing the patient serious harm;
       (e)  the patient was not informed of the substantial and significant risk;
       (f)  a reasonable, prudent person in the patient's position would not have consented to the health care rendered after having been fully informed as to all facts relevant to the decision to give consent; and
       (g)  the unauthorized part of the health care rendered was the proximate cause of personal injuries suffered by the patient.
       (2)  In determining what a reasonable, prudent person in the patient's position would do under the circumstances, the finder of fact shall use the viewpoint of the patient before health care was provided and before the occurrence of any personal injuries alleged to have arisen from said health care.
       (3)  It shall be a defense to any malpractice action against a health care provider based upon alleged failure to obtain informed consent if:
       (a)  the risk of the serious harm which the patient actually suffered was relatively minor;
       (b)  the risk of serious harm to the patient from the health care provider was commonly known to the public;
       (c)  the patient stated, prior to receiving the health care complained of, that he would accept the health care involved regardless of the risk; or that he did not want to be informed of the matters to which he would be entitled to be informed;

(d)  the health care provider, after considering all of the attendant facts and circumstances, used reasonable discretion as to the manner and extent to which risks were disclosed, if the health care provider reasonably believed that additional disclosures could be expected to have a substantial and adverse effect on the patient's condition; or
       (e)  the patient or his representative executed a written consent which sets forth the nature and purpose of the intended health care and which contains a declaration that the patient accepts the risk of substantial and serious harm, if any, in hopes of obtaining desired beneficial results of health care and which acknowledges that health care providers involved have explained his condition and the proposed health care in a satisfactory manner and that all questions asked about the health care and its attendant risks have been answered in a manner satisfactory to the patient or his representative.
       (4)  The written consent shall be a defense to an action against a health care provider based upon failure to obtain informed consent unless the patient proves that the person giving the consent lacked capacity to consent or shows by clear and convincing evidence that the execution
of the written consent was induced by the defendant's affirmative acts of fraudulent misrepresentation or fraudulent omission to state material facts.
       (5)  This act may not be construed to prevent any person 18 years of age or over from refusing to consent to health care for his own person upon personal or religious grounds.
       (6)  Except as provided in Section 76-7-304.5, the following persons are authorized and empowered to consent to any health care not prohibited by law:
       (a)  any parent, whether an adult or a minor, for the parent's minor child;
       (b)  any married person, for a spouse;
       (c)  any person temporarily standing in loco parentis, whether formally serving or not, for the minor under that person's care and any guardian for the guardian's ward;
       (d)  any person 18 years of age or over for that person's parent who is unable by reason of age, physical or mental condition, to provide such consent;
       (e)  any patient 18 years of age or over;
       (f)  any female regardless of age or marital status, when given in connection with her pregnancy or childbirth;
       (g)  in the absence of a parent, any adult for the adult's minor brother or sister; and
       (h)  in the absence of a parent, any grandparent for the grandparent's minor grandchild.
       (7)  A person who in good faith consents or authorizes health care treatment or procedures for another as provided by this act may not be subject to civil liability.

Whistle-blower law is an area of the law that rewards people for informing against entities that are breaking the law.  In return for blowing the whistle they often reap great financial gain when they expose corruption in the workplace.  It is often applied when a person comes forward and reports violation of Medicare anti-kickback rules.

Medicare has explicit rules named Stark laws that governs physician self-referral for Medicare and Medicaid patients. The law is named for United States Congressman Pete Stark, who sponsored the initial bill.  In a nutshell the law prohibits health care facilities from rewarding physicians for referral of patients to those facilities.  Congress believed that physicians should not be enticed into referring patients to specific facilities in exchange for items such as lower rent on office space or kickbacks to the referring physician in fees charged by the facilities.  This was primarily an effort to remove the appearance or actual conflict of interest and to promote the efficient use of health care delivery.

A recent case involving Tulare Regional Medical Center and its parent, the Tulare District Healthcare System, in Tulare California.  Tulare Regional Medical Center agreed to pay more than $2.4 million to settle a recent case.  The hospital and health-care system were accused of providing physicians with office rent and land sales substantially below fair-market value and forgiving debts in exchange for referring patients to the hospital, according to the settlement, which was announced Monday.

The United States Justice Department is charged with the task of investigating and prosecuting these types of cases.  The Justice Department is woefully underfunded and it is generally recognized that these types of cases are widespread and perhaps even ingrained in the way that health care facilities go about doing business.  According to the Fresno Bee the case involved twenty physicians, one doctor's group and a laboratory were involved. The doctors and lab were not identified by name.  The allegations were raised in a whistle-blower lawsuit filed last year in U.S. District Court in Los Angeles by the hospital district's former chief financial officer, Maria Lucy Reimche. As a whistle-blower, she will get about $500,000 as part of the settlement, Justice Department spokesman Thom Mrozek said.

My question is why was the whistle-blower named and not the physician?  If we are trying to expose fraud why name the accuser and not the accused.  There is of course some clause in the settlement that claims that the facility is not admitting any wrongdoing by paying the settlement.  On the other hand we all know facilities do not pay unless they believe they are responsible.  It is ludicrous to me of course that the doctors name remains secret.

Mistakes happen - they happen in everyday life and they happen in hospitals.  I know of no person who ever intentionally intended that a mistake hurt someone while rendering health care.  People that are attracted to the health care profession are, at least to soem degree, altruistic - they care.  I think we can all agree on that whether you are a patient, doctor, nurse or medical malpractice lawyer.

An article in the Associate Press titled "Saying'sorry' pays off for U. of Michigan doctors" is a terrific article that lays out the framework for a program that simply shows that telling the truth and offering compensation before being sued saves can lead to "money, time and feelings."

Not all agree of course.  Some say that admitting mistakes will be used against them in court to prove that they are liable for medical malpractice.  This strikes me as self-serving and deceptive.  If you have made a mistake you should fess-up to it, accept the consequences and move on.  I have settled medical malpractice cases where the health care facility and / or the doctor have admitted their mistakes that harmed a patient.  The patient was compansated and all went on with their lives.

The article quotes David Studdert of Harvard University saying that a review of published studies shows about 181,000 people are severely hurt each year as a result of mistakes at U.S. hospitals but only about 30,000 file legal claims.  Furthermore Studdert says that many people don't sue because they don't discover they're victims of malpractice. 

So what happens if every incident of medical malpractice was told to the vistim or their families.  Medical malpractice rates would skyrocket.  Studdert wrote in a 2007 article in the journal "Health Affairs." The spread of disclosure, the article said, could cause malpractice costs to rise from $5.8 billion now to between $7 billion and $11.3 billion a year.  The next question is - SO WHAT?

The answer of course is that physicians would have to pay more - perhaps much more in medical malpractice premiums.  However, for the first time in history, the true scope of mecical malpractice in the United States might be known and trends and practice models analyzed and medical mistakes might be for the first time addressed in a meaningful way.

That is a goal that we should be all concerned with.

Two registered nurses in Winkler County in West Texas are facing criminal indictments because they wanted to be advocates for their patients.  I realize there are two sides to every story but so far this sounds outrageous!  If this case is allowed to go forward it will have a very chilling effect on nurses who want and need and should be encouraged to speak out in behalf of their patients.  

As a retired nurse I know that health care facilities in which nurses work cater to physicians.  Why, you ask - because it is the doctors that bring in the patients for procedures and treatments for which the facility charges - the almighty dollar!  When registered nurses act as advocates for their patients, as they are taught to do and take an oath to do, they are often thought as meddling or exaggerating - standing in the way of what the doctor thinks must be done.  Who speaks for the patient?  Often their nurse does, that's who!

For local flavor and non-biased review of the actors see this article in the Fort Mills Times - Texas Nurses Faces Charges After Filing Complaint.

Please read the below news release reprinted from the Texas Nurses Association and consider donating to the TNA Legal Defense Fund.

FOR IMMEDIATE RELEASE

July 16, 2009

CONTACT:
Stacy Prince, 301-628-5038
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Joyce Cunningham, 512-452-0645
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SILVER SPRING, MD – The American Nurses Association (ANA), which represents the interests of the nation’s 2.9 million registered nurses, is joining forces with the Texas Nurses Association (TNA) to strongly criticize the recent indictment and prosecution of two registered nurses in Winkler County, Texas, for reporting to the Texas Medical Board their concerns about a physician’s standard of practice at the Winkler County Memorial Hospital in Kermit, Texas. ANA and TNA are gravely concerned about the chilling effect the county’s actions could have on future nurse “whistle blowers” who advocate for their patients in the nation’s hospitals. An initial hearing on the nurses’ motions to dismiss the case was held July 15 in the Winkler County Courthouse but no rulings were made on any of the motions.
“ANA wants Winkler County to know the world is watching – we will be monitoring this case closely in the hope that the apparent abuse of prosecutorial discretion will be corrected,” said ANA President Rebecca M. Patton, MSN, RN, CNOR. “It is outrageous to file criminal felony charges against these nurses based on allegations that they raised concerns over a physician’s actions. This undermines one of the basic tenets of the nurse’s Code of Ethics – nurses have a duty to advocate for the health and safety of their patients, and that is what these nurses were doing.”

Winkler County Memorial Hospital nurses Anne Mitchell, RN and Vicki Galle, RN, were charged with violating the law by sending an anonymous letter to the Texas Medical Board that expressed concern about a physician at the hospital. After receiving a complaint of harassment from the physician, the Winkler County Sheriff’s Department initiated an investigation that resulted in criminal charges against both nurses.

Because the two nurses worked for a county hospital – and included medical record numbers of the patients in their reporting (no patient names were disclosed) – the County Attorney’s office indicted them on misuse of official information – a third-degree felony that carries potential penalties of two-to-ten years’ imprisonment and a maximum fine of $10,000. Mitchell and Galle, both long-time nurses at the hospital, were fired from their positions.

ANA and TNA believe the law is being misinterpreted to wrongly prosecute Mitchell and Galle as punishment for filing a complaint against a physician. “No nurse should be penalized because he or she is advocating for patient safety,” said Clair B. Jordan, MSN, RN, executive director of TNA. “The nursing profession is standing behind these two nurses right now.”

The Texas Medical Board has written a letter to the Winkler County and District Attorneys stating that it is improper to criminally prosecute people for raising complaints with the Texas Medical Board; that the complaints were confidential and not subject to subpoena; and that under federal law the Texas Medical Board is exempt from Health Insurance Portability and Accountability Act (HIPAA) requirements, so there was no violation of any HIPAA laws.

TNA announced that it has established the TNA Legal Defense Fund for the Winkler County nurses, with a goal of raising at least $10,000 for their defense. TNA plans to match every dollar contributed by individual nurses up to $5,000. TNA and ANA call on all nurses to contribute to the fund. To ake a donation please visit www.texasnurses.org.

The ANA is the only full-service professional organization representing the interests of the nation's 2.9 million registered nurses through its 51 constituent member nurses associations and its 24 specialty nursing and workforce advocacy affiliate organizations that currently connect to ANA as affiliates. The ANA advances the nursing profession by fostering high standards of nursing practice, promoting the rights of nurses in the workplace, projecting a positive and realistic view of nursing, and by lobbying the Congress and regulatory agencies on health care issues affecting nurses and the public.

Texas Nurses Association (www.texasnurses.org) is a professional organization of registered nurses, and the only Texas affiliate of the American Nurses Association. Texas Nurses Association seeks to promote excellence in nursing by helping nurses achieve quality patient care through high standards of practice, legislative involvement, and public policy advocacy.

Assume you are admitted to the hospital for the removal of your appendix.  You wake up in the wee hours of the morning after surgery and have a stabbing pain to your left side and call the nurse.  The nurse evaluates you and gives you some pain medication.  An hour later you wake in a cold sweat with more severe pain in your left side and you call the nurse.  The nurse comes in and says "Um - your incision line is a little red and oozing - I will call the doctor to come and have a look at you."  You drift off to sleep waiting for the doctor but about half an hour later you awake clutching your side and cry out in pain.  The nurse again responds but this time has a doctor you have never seen in tow.  The doctor has greasy hair, looks disheveled, has ten pens in her pocket, small books protruding from her pocket and says to you "Hello Mr. Jones I was called by the nurse to look at you."  You do not care much that the doctor has called you Mr. Jones even though your name is Mr. Smithers because you are in terrific pain.  The doctor looks at your wound and you overhear the doctor say to the nurse, "What a night - five cases in the ER and I have been awake now for thirty hours straight - I am exhausted - so what is the problem here..."

Let me ask you a question. Do you have confidence in this doctor to care for you properly?  I imagine not.  I can not begin to tell you how common the above scenario is - it happens all the time in teaching hospitals.  Doctors, especially residents, interns and medical students are worked long hours in intense situations challenging their skills and endurance.  Is that any way to run a hospital?

The New York Times reported that a rift in the medical profession exists over restricting resident hours.  In 2003, the Accreditation Council for Graduate Medical Education told hospitals to adhere to an 80-hour workweek for their residents.  Before the 2003 guidelines, residents in some specialties would work more than 100 hours a week, compared with a 60-hour workweek common in parts of Western Europe. Ever since the 2003 guidelines were implemented, however, no conclusive evidence has emerged that the shorter workweek leads to a reduction in patient harm, according to an editorial in this week's New England Journal of Medicine. The NEJM editorial -- headlined "To Nap or Not to Nap" -- comes on the heels of a government-funded 2008 report that recommends further limits to the residents' workload, such as a maximum 16-hour shift without sleep, or a five-hour nap for shifts lasting longer.

Studies conducted to date are not conclusive and my guess is they are not conclusive because even 80 hours per week over a four week period with a maximum shift of 24 hours plus six hours involved in "transitional duties" is still too much work.  Let's face it - a decrease from 100 hours per week to 80 hours per week is hardly a basis to determine whether 20 hours off decreases mortality.  Eighty hours is simply still too long and any improvements would be marginal at best supporting the cadre that want to work resident physicians even harder.  For those proponents of longer resident hours let's ask them the same question I asked at the beginning of this post.

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: