Attorneys unavailable to take up medical malpractice cases
Jennifer Eastman, went to a hospital to get a dead fetus removed from her uterus. The doctor who removed the fetus perforated her uterus during the procedure. This went unnoticed by the second doctor who examined her later when her body was going in to shock post the procedure. Eventually, she was rushed back for an emergency surgery where her uterus was removed. It was bad enough that she had lost her first baby, but removal of her uterus due to the negligence of the medical staff, crushed her dream of having a big family. What comes next was even more painful.
Jennifer Eastman could not find an attorney to fight her case for her.
This is not the first time a victim of medical negligence has been unable to take things to court. A number of victims of medical malpractice are being denied justice. While such cases continue to rise each year, attorneys are becoming more and more reluctant to take up them cases.
Lawyers who once handled medical malpractice cases are turning away people who are victims of medical mistakes.
A law passed in 1976 by the South Dakota Legislature has been deterring such legitimate claims. As per this law, non-economic damages in medical malpractice cases are capped at $500,000 without an inflationary increase.
Attorneys who handle medical malpractice claims do it mostly on a contingency basis. The costs of such cases are very high and the only way an attorney is able to afford it is if a settlement or an award is given in their favor. Moreover, quite often the insurance companies end up taking most of the money received from the award or settlement, leaving very less for the victim and the attorney.
Dr. Mary Milroy, President of the South Dakota State Medical Association, believes that the cap deters people from filing frivolous lawsuits. She further adds that health providers live under a constant fear of being sued.
According to Professor Nora Freeman Engstrom from Stanford Law School, non-economic losses include awards for pain and suffering, emotional distress, loss of companionship and other injuries. She states that as per studies, many justifications for caps were "flimsy". For example, only about 2 to 3 percent of people were hurt by the medical mistakes ever attempt to seek compensation. Other studies show that caps don’t affect the supply of physicians or control the health costs. She further adds that caps mean that people with the worst injuries, such as brain damage or disfigurement, will not be able to receive compensation that is commensurate to their suffering.
The South Dakota's cap applies not only to doctors, but to dentists, chiropractors, nurses, dental assistants, nurse midwives, as well as other specialties and their corporate employers.