States with laws capping non-economic damages in medical malpractice cases are seeing faster growth in jury awards than the national average, a new study says. Much of that growth stems from catastrophic injuries involving obstetric services.
The findings suggest the continued creativity of plaintiff lawyers and the desire of judges and juries to find ways around statutory caps and compensate sympathetic malpractice victims and their families.
The counterintuitive finding on rapid growth of med-mal awards in states with pain-and-suffering caps was included in an annual analysis of trends (PDF) in large claims by London-based insurer Beazley Group, which provides stop-loss policies to cover large verdicts at many U.S. hospitals.
Steve Chang, team leader for healthcare claims, said plaintiff attorneys in states with capped damages have become skilled at inflating estimates of “economic damages” such as the lifetime costs of care associated with treating the effects of medical errors. That's to offset the limits on damages associated with pain and suffering and loss of consortium. Such limits particularly affect cases involving injuries to infants, children, stay-at-home mothers and retirees who can't show economic damages from loss of earnings.
“They're very adept now at framing their case to make it all about the economic damages, which are not capped,” Chang said.
In particular, obstetrics cases involving serious injuries to babies tend to be very expensive because they're based on a lifetime of healthcare expenses, said Lois Mahoney, owner of New England Medical Legal Consultants.
“They factor in the baby's life expectancy, and what that child will need for that many years: Wheelchairs, around-the-clock nurses, special beds and equipment. And that is how they get to those claim amounts,” she said.
The Beazley data show that obstetrics cases present the greatest liability exposure in hospitals, with average verdicts of around $1.4 million in 2012. In contrast, the award in an average medical malpractice case overall in 2012 hovered just below $500,000.
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