Medical Malpractice Caps Invading our Constitutional Rights.

Jeffrey Meldon — Fri, 03 Jul 2009 07:00:00 GMT

Medical Malpractice Caps, are caps on non-economic damages (i.e. pain and suffering, loss of enjoyment of life, loss of a loved one), namely, limiting of the total amount payable to the injured in medical claims.

They are supposed to decrease the burden and litigation of health care and it’s increasingly rising cost. Although the reduction of cost is a noble pursuit, it could potentially limit the liberties upon which our legal system and our very nation were founded.

Caps on damages limit or restrict the access that the common man (or woman) has to a trial by jury, as guaranteed by the Seventh Amendment of our Constitution. This in turn may violate the Fifth and Fourteenth amendment by not granting due process and equal protection under the law.

In our legal system, one of the most basic tenants is trial by jury. The text of the Seventh Amendment directly is

“in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the rules of common law”

Although the availability of a jury is not directly in dispute with medical malpractice caps, the judgement of the jury is invaded by limiting them as a fact finding body.

With a medical malpractice cap, regardless of your pain and suffering, the jury would have a “glass ceiling” that would limit the payout for the plaintiff. Plaintiffs (victims) faced with this cap would be further frustrated as even the most meritorious claim would only have the possibility of an award up to the capped amount.

The argument in favor of the medical malpractice caps is the increasing cost of medical malpractice insurance. Although this increasing cost of insurance is an issue, malpractice insurance companies state that non economic damages account for a very small percentage of their payouts. And state that these caps, if instituted, would only account for savings of around 1.0% for each company.

However, even if this is so, is this one percentage point worth invading a tenant of our judicial system that ensures individual rights and freedoms?

Medical malpractice caps simply limit the rights of the injured, and do not alleviate enough burdens on the doctors to warrant a second glance.

If the issue is insurance cost to physicians, then perhaps the legislature should look to the insurance companies themselves, and not to the injured. The medical malpractice insurance companies having been recording large profits for many years.

We want to ensure that our right to justice is not unfaily limited by the powerful doctor insurance lobby!

Originally posted at InjuryBoard by Jeffrey Meldon

Pharmacy Board Administers Slap on the Wrist in Death Case

Jeffrey Meldon — Sun, 17 Aug 2008 20:42:30 GMT

This week the Board of Pharmacy of the Florida Department of Health fined pharmacist Edna Irizarry $1000 and required her to attend an 8 hour continuing education course for her role in causing the death of 3 year old Sebastian Ferrero. Horst Ferrero, his father, said "The board choose to apply the minimum penalty $1000 in Sebastian's case, although the damage inflicted to my son was the maximum possible--his death."

Sebastian's father and mother, Luisa Ferrero, choose not to file suit against any of the medical personnel involved in their son's death and instead have focused their efforts on establishing reliable patient safety protocols to assure that what happened to their son will never happen to another child. The Ferrero's received a $850,000 settlement from Shands at the University of Florida and have donated all of the money to help establish a full-service, free-standing children's hospital in Gainesville.

The young child was taken to Shands hospital last October 8 for some routine tests. Based on his weight he should have been prescribed a 5.75 gram dose of arginine. Instead Irizarry, the pharmacist in charge, signed off on a dose 10 times that. Even after the child's mother questioned the nurse on duty about the dosage, the procedure continued unabated. After the child developed a severe headache Mr. Flerrerro asked the doctor on duty to check out his son but he only looked at his chart and asked the nurse how much medication the boy had received but never examined Sebastian or the bottles of R-Gene that contained the lethal dosage.

The Pharmacy Board decided to levy the light punishment based on Ms. Irizarry's lack of prior discipline for medical negligence. The Ferroro's believe that when the mistake cost their son his life, it sends the wrong message to administer minor punishment. Harsher punishment would help spread the word among the medical community, and pharmacists, in particular, that you always need to double check your prescriptions.

This is certainly not the first and it won't be the last time the medical community fails to recognize that harsh punishment will reinforce the need to protect the public from unnecessary careless and sometimes fatal acts of negligence.

Originally posted at InjuryBoard by Jeffrey Meldon

Gainesville, Ocala & Daytona Beach Personal Injury Lawyer - Medical Malpractice

Medical Malpractice Caps Invading our Constitutional Rights.

Pharmacy Board Administers Slap on the Wrist in Death Case