Caps Are Doubly Unfair to the Youngest Victims of Medical Negligence

A $250,000 cap on non-economic damages—the only compensation a jury can provide for an injury itself as opposed to reimbursement for the injured person's out-of-pocket expenses—is unfair to the most severely injured victims of medical malpractice. It would discriminate against children and would do nothing to lower health care costs or doctors' premiums.

A cap on non-economic damages discriminates against children.
When a child is injured or killed by medical malpractice, there are no lost wages to be reimbursed by economic damages. Other than reimbursement expenses for out-of-pocket medical costs, the only form of compensation is "non-economic damages," which would be limited to $250,000. Instead of a big-government, one-size-fits-all limit, we should let juries decide what appropriate compensation is for a paralyzed child who'll never play sports, a disfigured teenager who'll never go to a prom, or a mother who loses her child forever.

Are these non-economic losses—the only compensation for a child's permanent, life-altering injuries—less valuable than the economic loss of an adult's wages?

Are these cases frivolous?
Supporters of caps on malpractice awards refuse to name one case in which a victim received more than $250,000 in a case they would consider "frivolous." The arbitrary limit would apply in cases like the following:

Tricia Newenham, Maine
At 15, Tricia Newenham was an energetic teenager who'd been named her middle school's student of the year and was on track to become the first in her family to attend college. She took an over-the-counter cold medicine containing phenylpropanolamine, or PPA, and shortly thereafter had a massive stroke. She spent a month in a coma, and emerged totally blind and mentally impaired. The drug company that made the cold medicine had covered up an internal study showing PPA increased the risk of sudden hemorrhagic stroke, especially in young women. PPA was withdrawn from the market shortly after Tricia's stroke. ["A Dose of Denial," Los Angeles Times, March 28, 2004]

Heather Lewinski, Pennsylvania
17-year-old Heather Lewinski's face remains scarred for life after a Pittsburgh plastic surgeon performed radical surgery to correct a skin disorder near the left corner of her mouth when she was 8. The doctor claimed to have done the tissue expansion procedure on children many times before when in fact neither he nor any doctor in the United States had ever done the surgery to treat a condition such as Heather's. Following the operation, Heather was left with horrific facial scarring and a grotesque, stroke-like "tugging" at the corner of her mouth. She testified to Congress, "I will be 18 in a few months, and I have never kissed a boy" and she worries she will never marry and have children.

Alexandra Katada, Texas
During the birth of Sandra Katada's daughter Alexandra, the doctor contorted and stretched Alexandra's spine, destroying her nerves and leaving her partially paralyzed. The doctor applied so much force that, in addition to the spinal injury, the baby's elbow was broken and pulled from its socket. Damage to the spinal nerves responsible for stimulating the growth of her rib cage meant that when the rest of her body grew over the next several months Alexandra suffocated inside her small rib cage. Eight months old, she died on Valentine's Day, 1994.

Congress should work for real health care solutions.
The Congressional Budget Office has calculated that even the most drastic limits on medical malpractice damages would reduce overall health care costs by less than one half of one percent. Instead of "reform" that hurts the weakest members of our society, Congress should work for real health care solutions to provide coverage for the 8 million American children who have no health insurance.

February 7, 2005