Older Americans Suffer Most from Civil Justice Restrictions

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 negligence. It would discriminate against seniors and would do nothing to make health care safer or lower doctors' premiums.

A cap on non-economic damages discriminates against seniors.
When a retired person is injured or killed by medical negligence, there are no lost wages to be reimbursed by economic damages. Other than reimbursement for out-of-pocket medical costs, the only form of compensation is non-economic damages, which would be limited to $250,000.

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 anyone would consider "frivolous." The arbitrary limit would apply in all cases, including the following:

Ruth Waites, Texas
At 84, Ruth Waites went into a nursing home in Borger, Texas, operated by a health care company under investigation nationwide for providing substandard care. She developed painful bedsores which were never treated, and ultimately died from the resulting infection. One bedsore, on her tailbone, was the size of a grapefruit, and reached to the bone. ["Judge Orders Settlement in Nursing Home Case," Lubbock Avalanche Journal December 9, 1997]

Richard Flagg, New Jersey
At 60, Richard Flagg, a barge captain in New York harbor and Vietnam vet, was diagnosed with a bleeding tumor in his left lung which required that the lung be removed. The surgeon mistakenly removed the healthy right lung rather than the diseased left lung. Because of the surgeon's mistake in removing the healthy lung, the patient's remaining lung-which contained the tumor-could not be removed. Mr. Flagg survived for three years permanently connected to an oxygen tank before the tumor killed him.

Zivko Zivkovic, Utah
87-year-old Zivko Zivkovic, a retired pathologist, went in for a routine colonoscopy, but had to have emergency surgery after the doctor perforated his bowel. Surgeons were unable to repair the colon and performed a complete irreversible colostomy. After surgery, doctors realized that, during the procedure, Zivkovic had suffered a heart attack, which caused him to sustain mild brain damage, and that they had slashed his prostate and torn his bladder neck, requiring further surgery. This series of egregious medical errors left Mr. Zivkovic requiring around-the-clock care. ["Stories of Medical Malpractice," Center for Justice & Democracy]

Seniors are more likely to be injured or killed by negligence, bad drugs, and medical devices.
Seniors rely on health care, especially prescription drugs and medical devices, much more than the population at large. Congressional efforts to shield bad nursing homes, hospitals, and doctors will disproportionately hurt seniors. Likewise, efforts to prohibit punishment for the makers of faulty medical devices and dangerous drugs has a disparate impact against seniors.

Potential danger of medical devices is immense.
The Bjork-Shiley heart valve was sold for seven years, and tens of thousands of people were implanted before the manufacturer was forced to withdraw it from the market. Hundreds of patients died instantly when the valve failed catastrophically. Elderly patients were faced with the emotional turmoil of knowing there was a chance that the valve could suddenly fail, or the risk of having another round of heart surgery to replace the faulty valve. Efforts to protect manufacturers would shield the makers of dangerous products like the Bjork-Shiley heart valve.

Senior citizens enrolled in HMOs have poor physical outcomes.
A four-year study published in the Journal of the American Medical Association cited poor physical outcomes for senior citizens enrolled in health maintenance organizations (HMOs). "Patients who were elderly and poor were more than twice as likely to decline in health in an HMO than in [a fee-for-service] plan," says the report. Under current law, HMOs have virtual immunity from liability for their actions denying care. Why should we extend that kind of immunity when it does not improve care?

Age discrimination cases would be set back.
By definition, victims of age discrimination are older Americans. When an older worker is fired as the result of illegal discrimination, the harm goes beyond the mere loss of wages to humiliation and other emotional injuries. Yet court cases and recent tax law changes treat damages from discrimination cases as taxable income, unlike damages from a physical injury. This differential treatment of damages puts older Americans who have been the victim of discrimination at a huge disadvantage, and will effectively prevent many from seeking justice.

Securities fraud disproportionately affects seniors.
Senior citizens are disproportionately likely to be the victims of securities fraud. Although Americans over 65 are only 13% of all Americans, nearly 1 in 3 victims of securities fraud are seniors. Since securities are a large part of most pension, 401(k) and other retirement savings, fraud in securities is a major concern to seniors. Unfortunately, that concern is not shared by Congress, which has voted in the past to severely limit the ability of aggrieved investors to hold companies accountable. Efforts are underway to completely federalize securities fraud cases, which would close out the ability of investors to hold companies responsible for losses even in state court.

Updated February 7, 2005