Some plaintiffs are using “hybrid” medical malpractice lawsuits to skirt damage caps on noneconomic damages. The cases allege both professional negligence and medical battery.1-5

For example, in California, plaintiffs in medical liability cases can avoid the state’s $250,000 cap for noneconomic damages. “We are seeing the ‘hybrid’ tactic more frequently,” reports Brian Vandenberg, JD, senior vice president and general counsel for the American Medical Association.

This controversial approach “conflates distinct legal theories, an end-run around legislative tort reform,” Vandenberg argues. “They are disingenuous, a dangerous invitation for courts to trample on legislative authority.”

Court rulings have been mixed on whether these lawsuits are allowed to go forward. “But statutory caps on non-economic damages were upheld as constitutional in most of the recent state supreme court cases,” Vandenberg reports.

To secure punitive damages in a malpractice lawsuit, “you have to show egregious, almost criminal, conduct,” says Gregory Dolin, MD, JD, an associate professor of law at University of Baltimore.

Those cases are rare. Damages for pain and suffering are capped, but there is no limit on economic damages. “It’s possible to get multimillion-dollar settlements or verdicts for malpractice cases even with damage caps in place,” Dolin offers.

A stockbroker with 30 more years of earning capacity, whose injuries require lifelong, around-the-clock nursing care, is an example of a case with the potential for significant economic damages. “You could see a verdict for $30 or $40 million that would not be affected by the caps, that is all pure economic damages,” Dolin says. “That is one downside of caps.”

One argument in favor of caps is they remove the incentive for people to file frivolous or nuisance lawsuits. The downside is that potential plaintiffs with meritorious cases, but without large economic damages, are unlikely to find an attorney to pursue the claim. “It’s so expensive to litigate these cases, that no lawyer is likely to take the case,” Dolin says.

If the potential plaintiff is living on Social Security, a fixed income, or a small pension; is older and already past his or her life expectancy; or requires no future medical care, then economic damages are basically non-existent. “The only thing that’s left is pain and suffering,” Dolin notes. “Attorneys don’t want to take the risk when the reward at the end is very limited.”

Plaintiffs who cannot show significant economic damages are unlikely to be compensated. A good example is an ED misdiagnosing or improperly treating a heart attack or a stroke in an elderly patient. “That error may well kill the patient. But it results in very little economic damage,” Dolin says.

The patient’s earning capacity is small or zero. There are no additional ongoing medical expenses because the patient is dead. “What will happen more and more is that attorneys will take only surefire cases,” Dolin predicts. “They want a sure bet.”

Some attorneys require potential plaintiffs to incur the cost of asking an expert to evaluate the case. “Not everybody is able to shell out thousands to get an opinion letter, which may end up going nowhere,” Dolin says.

It is not enough that the expert’s opinion is malpractice definitely occurred. Many attorneys will not take the case unless the expert also says it is a winnable case. The bottom line, says Dolin, is lawyers seek cases where they can win a big judgment or settlement based solely on economic damages. This leaves many meritorious malpractice cases unresolved.

“If you remove damage caps, more parties will end up getting compensated,” Dolin says. “But there will probably be more meritless lawsuits.”

Proponents of damage caps say this will raise malpractice premiums, which in turn increases the cost of medical care. Not all states have put caps in place. “Some have considered and rejected them. Others have had courts strike them down,” Dolin says.

Data suggest states with damage caps have lower malpractice premiums, without the doctor shortages that other states are experiencing.6,7 “There is some evidence that caps stem the practice of defensive medicine,” Dolin says. “But there is a huge debate as to how much.”

REFERENCES

  1. Siebert v. Okun (New Mexico Supreme Court, Case Pending).
  2. Condon v. St. Alexius Medical Center (North Dakota Supreme Court, 2019).
  3. Lopez v. Ledesma (California Appellate, 2nd District, 2020).
  4. Yebuah v. Center for Urological Treatment (Tennessee Court of Appeals, 2020).
  5. DeFranko v. Poole (Florida District Court of Appeals, 3rd District, 2019).
  6. Nelson LJ 3rd, Morrisey MA, Kilgore ML. Damages caps in medical malpractice cases. Milbank Q 2007;85:259-286.
  7. Encinosa WE, Hellinger FJ. Have state caps on malpractice awards increased the supply of physicians? Health Aff (Millwood) 2005; Suppl Web Exclusives:W5-250-W5-258.