Jessica's family's lawyer opposes medical mal. cap

  1. Before Congress, Santillans' lawyer blasts malpractice award caps

    By Kyle Stock : The Herald-Sun Washington bureau
    Feb 27, 2003 : 7:14 pm ET

    WASHINGTON -- The lawyer for the 17-year-old Mexican girl who died after a transplant of incompatible organs at Duke University Hospital begged Congress on Thursday not to pass legislation that would cap certain medical malpractice awards.

    Kurt Dixon, representing the family of Jesica Santillan, joined Democratic lawmakers objecting to a proposal that would set a $250,000 limit on malpractice awards in an effort to check rising insurance costs. Dixon said that the Santillan family has not yet decided whether to sue for malpractice damages.

    "Even with the tragic events that took the life of this beautiful child, I should not be here today," Dixon said at a news conference. "Do we really want a health care system operating under a rule of law that says to hospitals, to surgeons and to organ banks, that unless you intentionally injure a patient, no degree of negligence on your part ... will pierce your shield of immunity."

    While the bill would not limit "economic damages," for the death or injury of a family's breadwinner, it would limit "noneconomic damages" to $250,000. Santillan's death would be considered noneconomic damage, Dixon said.

    The bill also says that punitive damages should be awarded only if the medical professional "acted with malicious intent to injure the claimant." Although a simple blood check would have prevented Santillan's fateful surgery, Dixon said her family would not be eligible for punitive damages if the bill became law because the oversight wasn't intentional.

    Dixon was not allowed to testify at the Energy and Commerce Committee meeting, but will speak before the House Judiciary Committee today.

    "By backing H.R. 5, members of Congress are telling the families of victims like Jesica Santillan that an arbitrary political cap of $250,000 is all their daughter's life is worth," Rep. Diana DeGette, D-Colo., said at the news conference.

    Santillan died four years after her family paid a smuggler to get them into the United States from Guadalajara, Mexico, in search of better medical care.

    Proponents of the bill, including its 108 co-sponsors, say it is intended to lower insurance premiums for doctors, many of whom are striking or leaving the medical profession because of rapidly increasing coverage costs.

    "What do you think an insurance company would say to someone who wanted to insure a house, but could not tell the value except that it could be worth either $10,000 or millions?" Rep. James C. Greenwood, R-Pa., the chief sponsor of the bill, told the House Energy and Commerce Committee earlier this month. "[Insurance companies] simply cannot make reasonable business decisions [assessing] their risk when they don't know with each passing year what juries will award."

    In certain states, insurance premiums for highly specialized doctors, such as neurosurgeons and obstetricians, are higher than the physicians' annual salaries, according to an Energy and Commerce Committee source.

    Dixon and many Democratic lawmakers say insurance companies are pushing for the malpractice cap and raising premiums to recover from investment losses. They argue that doctors are being forced to pick up slack left by a foundering stock market. DeGette and several other Democrats at the news conference insisted that malpractice awards should be left in the hands of juries.

    Sen. John Edwards, D-N.C., a former trial lawyer who won a number of malpractice suits, also has criticized malpractice caps.

    "At every stage of the legal process, the administration's plan systematically rewrites the rules of civil law to tip the scales against patients," he said

    Edwards said Congress should work to stop frivolous lawsuits, crack down on a small percentage of doctors responsible for the most malpractice cases and put the onus on insurance companies to lower their rates.

    A spokesman for Sen. Elizabeth Dole, R-N.C., would not say whether or not she would support a malpractice cap.

    Both the Judiciary and the Energy and Commerce committees plan to give the bill a final edit next week and decide whether to send it to the full House for a vote shortly thereafter. The House, Senate and President Bush would have to sign off on the proposal before the malpractice cap became law.
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  2. 43 Comments

  3. by   ShandyLynnRN
    I can't understand why anyone would need more than $250,000 for "pain and suffering" or whatever else you want to call it. Puhleeze!
  4. by   sjoe
    Surprise! (Does the phrase "self-serving" ring a bell?)
  5. by   CherryRN
    Please.
  6. by   Tilleycs
    The article says that "the Santillan family has not yet decided whether to sue for malpractice damages". I don't think people who are not in this country legally SHOULD be allowed to sue ANYONE. Can illegal aliens sue people? I don't know.

    That may be why they haven't "decided" yet. I don't think they should be allowed to.
  7. by   rachel h
    Let me start off by saying that it is terrible that Jessica died and went through as much as she did, and I'm sure her family is heartbroken.

    That being said, they are in this country illegally. They did not pay for any of her medical care. Why should they be allowed to sue and get money when they didn't have any in the first place?

    JMO...
  8. by   SmilingBluEyes
    Is ANYone surprised here? the way we are going without reforms, there won't BE doctors left willing (or able) to practice medicine. Who could afford malpractice insurance? In OB care, there are areas where there are NO doctors to deliver babies. It will spread across specialties, you can bet. Something HAS to be done. What price "pain and suffering"?
    Last edit by SmilingBluEyes on Feb 28, '03
  9. by   RNforLongTime
    Ok, as I understand it, the Santillan family originally came into this country illegally but have resident alien status, which gave them permission to work.

    I agree with a Malpractice cap as what will happen is that health insurance will become so expensive that employers won't be able to afford it and then employees won't have any coverage. And then we wont have any.

    What happened to Jesica was tragic. But it was an accident, the Doctor did not intentionally cause Jesica harm. What other field gets sued for millions for making a human error? Does a teacher get sued for incorrectly marking a homework assignment? Does a garbageman get sued for denting someones trashcan? Does the snowplow driver get sued for knocking over someones mailbox? I doubt it. My point is, although as a health professional, a mistake I make could potentially kill someone, I do not set out to do so on a daily basis. And neither did Jesica's doctor. He was trying to save her life.
  10. by   wv_nurse 2003
    You raise an excellant point nurse-lou. This is only one of the many problems with malpractice and the ever growing number of lawsuits--but not just in healthcare. How many people sue because they were in a traffic accident (the term is "accident" for a reason) and they want long-term compensation for "pain and suffering." Its the great American lottery.

    I just wonder when it was decided that people deserved monetary compensation for anything that happens to go "wrong" in any part of their lives. I break my leg walking down your steps--you should have to pay me. I don't like the name that you called me--you should have to pay me. You put your alma mater's initials on my uterus before removing it--you should pay me. PAAALLEEEAASSEEE!!!!

    The focus in this (Jessica's) situation should be on finding out where the ball was dropped--and making sure steps are taken to see that this type of error NEVER happens again! No amount of money in the world will bring her back--and there were no guarantees that the transplant wouldn't have had complications even with the right organs.
    Last edit by wv_nurse 2003 on Feb 28, '03
  11. by   Tilleycs
    I agree. What happened was tragic, and that it was an ACCIDENT. NO ONE involved set out to harm or kill Jessica. She was given organs, operations, and medication that didn't cost the family diddly-squat, and now they (if they decide to sue) will want what? More free money.

    And the father may have been granted resident alien status so he can work, but guess where they've decided to bury her? North Carolina (Duke is in Durham, NC; the article that I got the info from is at http://www.herald-sun.com/durham/4-325694.html). Guess why? So they won't have to risk not being allowed back into the country. And guess what they wouldn't be able to due if they weren't allowed back into the country? Sue the pants off Duke.
  12. by   oramar
    What is he carping about. The rule wouldn't be retroactive. He will still have a chance to make a fortune from this deal.
  13. by   RNforLongTime
    Now, this thread has the potential to get heated, so as a Mod, I just want to remind everyone to play nice. Thank you
  14. by   tonchitoRN
    i am currently in an rn-bsn program. if i had know everything i could be sued for i probably would not have gotten into nursing. it is true i you can be sued for saying the wrong thing to the patient, give advice (no can do).
    if i were not a nurse and my friend asked what she can give to her colicky baby i can give an answer. now that i am a nurse i am supposed to answer "go ask your doctor". i see people asking for advice here on the boards and theoretically we are supposed to say "i am only a nurse. go see your md".
    sorry, there are too many lawsuits that are ruining the economy and the medical profession. also, don't forget the lawyer gets 1/3 plus expenses of the final award. i think it is the lawyers fault.

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