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.
