Saturday, August 28, 2010

Nevada med mal cap on damages under attack is reporting that the family of a Nevada woman who died due to a medical misdiagnosis is preparing to challenge the application of the state's $350,000 cap on non-economic damages in medical malpractice lawsuits. The plaintiffs in the case (the husband and six children of the victim) are not challenging the imposition of the cap itself but an interpretation of how it should be applied. They argue that the cap should apply "per plaintiff". The defendants argue the cap applies to all the claims collectively, meaning the plaintiffs would only get $350,000 to divide among them. In other words, according to the plaintiffs, each plaintiff should be allowed to get up to $350,000; according to the defendants, each plaintiff should not get more than $50,000. It's a big difference. According to the story, if the court does not agree with the plaintiffs' interpretation, they may then challenge the constitutionality of the entire malpractice damage cap. Go here for the full story. I am not sure why the plaintiffs' have decided to structure their argument this way. It seems to me it would make more sense to do it in reverse order. First challenge the whole system and then, in the alternative, if the system is validated then argue for a favorable application of it. As an aside, remember that the Supreme Court of Illinois recently invalidated the Illinois cap, so there is recent (persuasive) precedent in support of the plaintiffs' position. For my posts on the Illinois case and its consequences go here, here, here, here and here.

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