Personal Injury Law

State Court Declares Medical Malpractice Caps Unconstitutional

By Steven M. Levin and John J. Perconti

Last week Courthouse News Service wrote about a recent state appeals court that reached the same conclusion as the Illinois Supreme Court: medical malpractice damage caps are unconstitutional infringement into the judicial process.

The court made the ruling after an appeal by a family whose young daughter suffered debilitating injuries because of the negligent of a nurse. The young girl developed a rare childhood-cancer that was not diagnosed in time to prevent severe injury?even though the girl made 32 separate visits to a nursing clinic prior to the diagnosis. The nurse practitioner who ran the clinic failed to diagnose the young child with the cancer, known as neuroblastoma. It was eventually revealed that the nurse never received a bachelor?s degree or master?s degree as required to become a nurse practitioner. Her highest degree was a high school diploma.

The family of the victim, who is now legally blind with a misshaped skull, filed a malpractice lawsuit against the negligent nurse. The family won their claim and a jury from their community awarded them $6.2 million for the lifelong care that will be needed because of the medical error. However, the caps in the state arbitrarily shrunk the award to a one-time payment that was 12 times smaller than that which her jury deemed appropriate.

The appeals court ultimately rejected the cap as an unjustified discrimination against certain victims of negligence. The caps apply only to some victims and not others. As one of the Judges wrote, ?the state offered no evidence in this case?to refute the fact that the cap discriminates against [the victim] by limiting their general damage recovery?while allowing other less severely injured victims to fully recover.?

Full post as published by Illinois Medical Malpractice Blog on December 11, 2010 (boomark / email).