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The Wall Street Journal recently published an editorial advocating on behalf of caps on pain and suffering damages in medical malpractice actions.

Much good has resulted since Illinois lawmakers joined 35 other states and placed limits on medical damage awards three years ago. Doctors no longer flee the state in droves, and health care is more accessible. But if the trial lawyers prevail in a case heard by the Illinois Supreme Court recently, those trends could be reversed.

Of course the editorial doesn’t once mention victims of medical malpractice and the effect that caps have on meritorious claims.

The story of James and Debbie MacDonald shows the effect caps can have on individuals. West Virginia imposes a straight cap of $250,000 for pain and suffering no matter how many plaintiffs or how many defendants are involved in a case. (The cap is raised to $500,000 when the injury results in certain damages such as permanent disfigurement.) In MacDonald v. City Hospital, Inc. et al. a meritorious claim could not be settled because the defendants were confident that no matter how negligent their actions, the cap protected them from a big verdict. To them, it was worth the risk of going to trial as opposed to resolving the matter amicably and taking responsibility for their negligence.

The victim of the West Virginia cap was a retired school teacher of 34 years and his wife. James MacDonald suffered a permanent debilitating injury due to the negligent administration of a three drug combination. After giving over thirty years of his life to his community as a elementary school teacher, Mr. MacDonald had his retirement years stripped away, as he is in a condition now where it is difficult for him to get around.

James MacDonald had entered City Hospital with pneumonia in October of 2004. At the time of his admission Mr. MacDonald was taking Cyclosporine (for a kidney transplant he had received roughly twenty years earlier) and Lipitor. (It is common for transplant patients to be placed on a statin such as Lipitor to control cholesterol.) Diflucan (an antifungal) was administered to treat the pneumonia about five days into his admission.

Mr. MacDonald alleged that this three drug combination of Cyclosporine, Lipitor and Diflucan had a known risk of causing rhabdomyolysis, a disease process leading to muscle tissue breakdown. Despite having had certain kidney labs done during Mr. MacDonald’s first three days at the hospital, when the defendant doctor took over his care he stopped ordering these labs. By the time the doctor requested these labs be conducted, Mr. MacDonald’s CPK (a test associated with kidney function) had gone from a 55 (normal is 0 – 250) to 19,000 and would eventually reach 55,000. He suffered permanent muscle damage. Mr. MacDonald spent several months in physical therapy and rehabilitation. Despite his efforts, Mr. MacDonald continues to have serious problems walking and getting around in general.

Mr. MacDonald alleged three violations of the standard of care: (1) the pharmacy should have alerted the attending physician to the potential interaction between Cyclosporine, Lipitor and Diflucan; (2) the attending should have discontinued the Lipitor; and (3) if the Lipitor was not discontinued, the standard of care required the attending physician to monitor Mr. MacDonald’s kidney function. None of these were done.

After seven days of trial, on November 25, 2008 a West Virginia jury found that the defendants were negligent and awarded the MacDonalds $1.6 million: $92,000 in past medical bills; $37,000 in lost wages; $250,000 for past pain and suffering; $750,000 for future pain and suffering; and $500,000 to Mrs. MacDonald for loss of consortium.

The question now is whether the judge will impose the $250,000 or $500,000 cap. But this is the other side of caps. In this instance, a cap prevented settlement and sent a case with clear liability to trial. The defendants chose to use the cap as a sword, not a shield. The West Virginia cap encouraged a frivolous defense. And a retired school teacher and his wife will likely suffer as a result.

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