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In 2003, our medical malpractice reforms capped the amount of non-economic damages that plaintiffs could recover. There were predictions that the cap would be unfair, and there have been anecdotal stories relating to the caps’ discriminatory effect, but now, four law professors (including three from the University of Texas school of law, my alma mater) released a study confirming the discriminatory effects of the caps.

The professors looked at how the cap was applied to jury verdicts across the state. The results are stunning. In cases won by the plaintiff, the damages were reduced by the caps in 47% of the cases. Jury verdicts are supposed to be protected. The jurors are the ones that see the evidence, see the victims and get a first hand look at how the malpractice has impacted the victims. The jurors are in the best position to truly determine the plaintiff’s loss. And, unfortunately, in almost half the cases where the jury finds that the doctor was negligent, the caps mean that the plaintiff isn’t being fully compensated for his or her loss.

And just as feared, the caps have a disproportionate effect on cases brought by the unemployed, the deceased and the elderly because these groups don’t have lost wages (economic damages) to prop up their claims.

But I think the study may miss the most discriminatory effect that the caps have, and that’s the weeding out of meritorious cases brought by these victims because the cases aren’t economically viable. In cases involving a death, the elderly, children and the unemployed, the damages are almost always limited to non-economic damages. It is almost impossible to make these cases work economically. In such a situation, the attorneys are likely being asked to spend $80,000 – $100,000 of their own money (a fairly conservative amount for what it costs to work up a good medical malpractice case) when the best that they can hope for is recovering $100,000 in fees (40% of the $250,000 cap). Add in the difficult nature of medical malpractice claims, and good plaintiff’s lawyers have to turn down almost all medical malpractice cases brought by the unemployed or the elderly. (There would probably be better odds in Vegas than what the caps create in these situations.)

Unfortunately, it looks the caps are here to stay, and consumers will continue to get the short end of the stick.

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