The Vulnerable Hurt by Caps on Medical Malpractice Claims

In a viewpoint published in Forbes Magazine law professor David A. Hyman of the University of Illinois weighed into the tort reform debate in the United States where 23 states have enacted a cap on the recovery of damages for non-economic losses since California first did so in 1975. Professor Hyman knows of what he speaks having released a study last year with 3 other professors of the impact a cap would have on medical malpractice claims in Texas. He points out that non-economic damages are intended to compensate for real suffering and often constitute the only recourse for the survivors of the elderly, the unemployed, babies, children and housewives. Unfortunately the introduction of a cap becomes an access to justice issue as the damages recoverable by these plaintiffs are not high enough to attract most lawyers to represent them. His study shows that the survivors of deceased victims of medical malpractice would bear a disproportionate payout of the reduction in claim payments. The conclusion is that an approach to deal with the issue of rising medical malpractice premiums by way of the implementation of a cap on non-economic damages is not suitable on account of the systemic discrimination it would create against the disadvantaged members of society.

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