Florida's Medical Malpractice Debate Prompts Questions about Price of Pain (Tampa Tribune, June 19, 2003) By Guy Boulton
Jun. 19--How much is a life worth? What about a limb? Or eyesight?
The economic answer depends largely on what you do for a living and how much you make.
That fact underlies the debate to limit non-economic damages, commonly known as pain and suffering, in medical malpractice cases.
The Legislature is in a special session this week to come up with a potential solution to the turmoil in the market for medical malpractice insurance. And much of the debate has centered on the fairness of limiting non-economic damages.
Doing so would limit victims of medical malpractice largely to economic damages. Yet non-economic damages exist, at least in part, because of the inherent limitations and ine...uities of compensating victims solely for their economic losses.
"Making you economically whole again doesn't make you whole again," said Jay Wolfson, a lawyer and professor at colleges of public health and medicine at the University of South Florida.
Economic damages are designed to compensate victims for losses such as medical bills and lost wages. How they are calculated is complex. But one of the key components is future wages.
That means the life of an executive has more economic value than the person who cleans his or her office. Since the executive makes more money, the award for economic damages would be greater.
In one sense, that's only fair, since the executive's loss -- or that to his or her spouse and children younger than 25 -- would be greater.
But Betsey Herd, a Tampa attorney who represents plaintiffs in medical malpractice cases, said that given the way economic damages are calculated, the people who are the most vulnerable and have the least resources would be the most hurt by capping non-economic damages.
Another key component of economic damages is medical expenses. But the money for medical expenses in malpractice cases often goes to insurance companies or hospitals and other health care providers. Those parties often file liens against the portion of the award or settlement for medical expenses, less legal fees.
Even Medicare, for instance, will file liens in medical malpractice lawsuits.
Further, economic damages would provide little compensation for many victims of medical malpractice. The parent of a child who dies because of malpractice, for instance, would receive little money for economic damages.
"There is virtually no economic value other than the medical costs," Wolfson said.
Such is the nature of economic damages that the loss of an arm for someone who is retired would bring relatively little money in a medical malpractice lawsuit. For the victim, it's a catastrophe, permanently altering his or her life. But since the victim is retired, it has a limited effect on future earnings.
"Non-economic damages, for a large class of people, are the only damages that are available," said Mike Trentalange, a Tampa lawyer who specializes in malpractice cases.
Determining economic damages, moreover, is a complex and contentious process, particularly when someone has died. Experts use detailed formulas to calculate the economic value and future earnings of a homemaker or a young executive at the start of a promising career.
"The challenging thing about this is there is no single black box to bring into a jury," Wolfson said. "If you've seen one case, you've seen one case."
Yet Wolfson said economic damages are at least more consistent than noneconomic damages. Those awards, in contrast, can vary wildly. "That's where the lottery component comes in," he said.
It also is one of the main arguments of proponents of caps on awards for noneconomic damages.
The challenge, Wolfson said, is finding a fair way to compensate people for what ultimately cannot be compensated.
"There's no easy solution to this because of the emotion and the complexities involved," Wolfson said.
