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Ballot initiative seeks to improve fairness of medical malpractice awards.

Medical MalpracticeTen years ago, Steven Olsen fell on a stick while hiking with his family in the woods. The two-year-old was taken to the hospital for treatment, but doctors refused to give Steven a CAT scan to check for head injuries as his parents requested. The next day, a growing brain abscess had Steven back at the hospital, this time in a coma. Had the hospital provided the $800 CAT scan, Steven would not be blind and brain damaged today. A jury awarded $7.1 million to Steven and his family in a medical malpractice case, but due to a California cap on non-economic damages, the judge was forced to restrict the judgment to just $250,000, which seems far from fair compensation for a lifetime of suffering.

Activists have been trying for years to get the medical malpractice cap adjusted to better provide for fair and equitable compensation to victims of medical malpractice like Steven. Now, their efforts seem poised to bear fruit. A ballot initiative will place the question of whether to raise the medical malpractice cap on non-economic damages to $1.1 million before California voters this November.

The current $250,000 cap on non-economic damages in medical malpractice cases dates back to 1975. Besides being an arbitrary and unfair number, this cap has not been adjusted for inflation. The result is a cap that is woefully out of touch with the needs of victims and their families.

Lifting the cap will also help more victims to pursue claims against irresponsible medical professionals by providing a means for them to be compensated for legal fees. Right now, legal fees must be deducted from the non-economic portion of the award. This makes it impractical for victims like children and the elderly who do not have high employment income to pursue a case because they can’t afford the legal fees.

It is important to note that economic damages, or compensation for the costs of things like lost wages, home modifications, and past and future medical bills, are not affected by the cap. Therefore it is possible for victims to receive higher settlements even with the cap in place. However, since juries are not permitted to be explicitly informed of the cap when making their judgment, they often do not realize that they need to structure their settlements in a way that dedicates funds appropriately and protects the value of the settlement from the restriction of the cap. For example, Steven could certainly have merited more than $250,000 in compensation for medical costs considering he has about 70 doctor visits and 160 therapy visits each year. But the jury was not made aware of how to provide for these activities.

We will be following the progress of this ballot initiative carefully and looking forward to a future in which a revised cap enables medical malpractice attorneys to help more victims secure fair compensation.

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