Illinois Supreme Court ruling hurts us all

February 9th, 2010 at 08:54am Wally Haas

From time to time, I like to publish op/ed pieces here when I don’t have room for them in print. Below is one from Maureen Martin of The Heartland Institute. I’ll publish an opposing view here if I get one.

Nothing brings a greedy gleam to the eye of a plaintiff’s trial lawyer like a “baby case,” as they crudely call them. They mean a case against a doctor or hospital involving a baby allegedly injured or killed during the birthing process. The lawyers stand to pocket millions of dollars without even breaking a sweat.

That is exactly the situation the Illinois Supreme Court decided to perpetuate by ruling last Thursday (Feb. 4, 2010) ceilings on noneconomic damages are unconstitutional.

Damages fall into two categories: economic and noneconomic. Economic damages involve lost funds. Predicting future losses can be difficult. How many years will the plaintiff live? How much money would he have earned? What medical care would she have needed? Expert witnesses are required, and they are expensive. But it can be done, and it should be done. No one should go uncompensated for economic losses caused by malpractice.

But there is no need for expert witnesses, just a flair for the dramatic, when it comes to noneconomic damages. Take now-disgraced 2004 Democratic vice presidential candidate John Edwards. According to The New York Times, here is what he said during his closing argument in one baby case:

“She said at 3, ‘I’m fine.’ She said at 4, ‘I’m having a little trouble, but I’m doing OK.’ Five, she said, ‘I’m having problems.’ At 5:30, she said, ‘I need out.’”

The obstetrician, Edwards argued, should have immediately performed a Caesarean section, but did not. As a result, the baby’s brain was damaged, Edwards said. “She speaks to you through me,” Edwards went on. “And I have to tell you right now — I didn’t plan to talk about this — right now I feel her. I feel her presence. She’s inside me, and she’s talking to you.” The jury returned a verdict of $6.5 million. No sweat.

That’s the tactic the Illinois Supreme Court endorsed last Thursday. It’s important to note the law involved no cap on actual damages, only noneconomic damages such as pain and suffering.

There is no established method, either in the law or in reality, to calculate such damages. How does one calculate the monetary amount attributable to pain? Or suffering? In cases brought to trial, emotion prevails.

Plaintiffs’ lawyers say noneconomic damages are needed to compensate victims fully in case future medical expenses and other economic damages exceed projections at trial. That’s why some states, such as Wisconsin, pay all actual such future expenses if plaintiffs turn over to the state the funds they win in litigation, even if this money is insufficient to cover actual future costs. This was done in return for caps. It’s a sensible system because victims are fully compensated.

But huge payoffs of millions of dollars to a few victims is not money well spent, despite the court’s ruling. The birthing process is medically difficult. Bad things can happen because of the mother’s behavior, her genetics, mere happenstance, or medical mistakes.

The right thing to do is to compensate actual malpractice victims. Make them whole. Pay their actual medical losses. Keep them as healthy as modern medicine can. But the wrong thing to do is to compensate a few of these victims with windfall verdicts.

The latter is what the Illinois Supreme Court endorsed last week.

Maureen Martin, mmartin@heartland.org, is an attorney and senior fellow for legal affairs at The Heartland Institute.

Entry Filed under: Uncategorized