What we can learn from Karen Santorum’s Medical Malpractice lawsuit

It has been reported that just weeks before supporting a $250,000 cap on non-economic damages in medical malpractice lawsuits (think “pain and suffering”), then Senator Rick Santorum’s wife had filed suit against a chiropractor seeking a $500,000 recovery.

According to ABC news,

The problem started when Mrs. Santorum visited chiropractor Dr. David Dolberg to treat her sore back shortly after she lost her newborn son Gabriel.  According to the lawsuit, Dr. Dolberg made the problem worse by causing a herniated disk. Eventually Mrs. Santorum had surgery to fix the problem.

The jury awarded Mrs. Santorum $350,000 (although the award was later reduced to $175,000) .

It is interesting how easy it is to overvalue your own case.  Or maybe I should say, place a very high value on your own pain and discomfort, a value that you would never place on anyone else’s.

Personally, I can see no way that a herniated disk would be worth anywhere near $500,000.  I am even surprised that a jury would award $350,000.

Yet, that is not what Mrs. Santorum (and probably her husband — I assume he was a plaintiff as well and made a claim for loss of consortium) received.  A judge reduced the verdict in half, to $175,000, in a process that is called remittitur.  You see, when a jury awards an excessive verdict, a judge can reduce the award to something more reasonable.

I should also point out that most malpractice claims are rejected by attorneys because they are too weak or costly to prosecute.  Out of the few cases that are accepted, many are dismissed by judges prior to trial for lack of evidence.  Of the cases that go to trial, plaintiffs prevail in only about one quarter.

That is part of the reason why I do not believe that damage caps are necessary.  The system does a good job of weeding out bad claims and correcting excessive verdicts.  In fact, most of the “excessive verdicts” that you have seen publicized were in fact reduced afterwards by judges.

On the other hand, if we did have damage caps, then a truly worthy plaintiff, who has suffered serious injuries, would not receive an appropriate compensation.

It would also mean that we would be taking a system that works by awarding compensation on a case by case basis, based upon the fault of the tortfeasor and the extent of damages caused, and replacing it with one where, after a certain point, there is no consideration for the specific nature of the damage done.  For example, while I would never complain about a system that caps damages for a herniated disk at $5000,000, I would have a problem if the same cap applied to paraplegia.

I am also concerned that if we lessen the consequences of negligence and malpractice, that we would be removing a strong incentive for doctors to give their patients the best possible care (as opposed to the most profitable).

Our system of tort law and compensatory justice has been in place since before the founding of this country.  It has been fine-honed over the years (and probably, the complaints made by doctors, insurance companies and politicians have had an effect on both judges and juries as well).