The family of the 17 year old victim of a botched heart-lung transplant, Jesica Santillan, would not be able to find an attorney to take their daughter’s case if President Bush‘s proposed medical malpractice limits succeed, a California consumer group stated today.

Bush proposes a $250,000 cap on compensation for malpractice victims’ pain and suffering — damages which can not be quantified by wage loss or medical bills. The cap has been in effect in California since 1976. The Santa Monica-based Foundation for Taxpayer and Consumer Rights (FTCR) said attorneys in California would be unlikely to take such case because “economic” damages would be very little, probably limited to funeral costs, and attorneys would not see the case as economically viable.

Santillan had no lost wages and her parents would be unlikely to prove they expected to depend on her future income, as California law requires. Attorneys’ fees, court costs and expert witnesses would then have to subtracted from the maximum of $250,000 available in case — making it economically unattractive for attorneys to take a chance on. (In addition to capping victims’ damages, Bush also proposes capping their attorney’s contingency fees — how much lawyers can collect as a percentage of a recovery — also in place in California.) Punitive damages would be unavailable as well because there was no intent to injure.

North Carolina, where the mistaken transplant occurred due a mix-up in blood type, currently has no caps on economic or non-economic damages.

“Jesica Santillan’s family would likely be without an attorney if this medical negligence occurred in California rather than North Carolina,” said Jamie Court, executive director of FTCR and co-author of Making A Killing: HMOs and the Threat to Your Health. “Limited compensation for victims often means no legal accountability for wrongdoers. If Americans believe the family of Jesica Santillan should be able to hold the doctors and hospital responsible for their mistake, they must oppose President Bush‘s proposal to limit medical malpractice victims’ rights and remedies.”

FTCR, a nonprofit consumer group, has worked with hundreds of victims of medical malpractice in California and testified in Congress repeatedly on the issue. FTCR President Harvey Rosenfield will testify again about proposed medical malpractice limits in the House Commerce Committee on Thursday.

Typically only those patients with large wage loss or medical bills are able to find attorneys in California. For example, injured patients who, as a result of medical negligence, lose their fertility or are severely disfigured typically cannot prove “economic” damage. Similarly, the death of a child, teenager or senior citizen typically does not result in “economic” damage because there is no basis for wage loss or measuring medical bills. In these types of California cases, there is typically no legal accountability for wrongdoers

The situation stirred well-known insurance defense attorney Robert Baker, who defended malpractice suits for more than twenty years, to tell Congress about the problem. “In my view, these malpractice reforms have aided insurance companies and physicians, but have, to a significant extent, been detrimental to person injured by medical negligence,” Baker testified before the House Judiciary Committee in 1994 on behalf of the American Board of Trial Advocates (ABOTA). “As a result of the caps on damages, most of the exceedingly competent plaintiff’s lawyers in California simply will not handle a malpractice case.

“There are entire categories of cases that have been eliminated since malpractice reform was implemented in California. The victims of cases that have a value between $50,000 and $150,000 are basically without representation. As an example, incidents of failure to diagnose an appendicitis still occur, but suits are not filed to any extent in California.”

Soon after the testimony, Baker’s major clients — the HMO Kaiser Permanente and malpractice insurer The Doctors’ Company — fired him.

Legal fees and expenses are not added on to the “economic” damage award, so they must be subtracted from the capped “non-economic” damages portion. This makes expensive cases without significant economic damage components not viable for attorneys.

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