Wellborn Paluch, LLP Blog

Wednesday, November 23, 2016

Supreme Court of Arkansas Disallows Capped Compensation for Non-Economic Damages

What are non-economic damages and why shouldn't they be capped?

A recent decision by the Arkansas Supreme Court to knock "Issue 4" off the ballot has implications throughout the United States. Issue 4 would have drastically capped compensation for non-economic damages to patients injured by medical malpractice, including nursing home residents.

There are real and present dangers to capping damages for non-economic injuries in medical malpractice cases; all include some aspect of injustice. If you have suffered as a result of medical malpractice, it is essential that you have a knowledgeable, compassionate personal injury attorney at your side so that you can receive the full measure of compensation you deserve. This is particularly true if you have received injuries unrelated to wage loss.

What are non-economic injuries?

Non-economic injuries are those that do not affect an individual's income or assets. This means that the very consideration of capping "non-economic injuries" puts children or unemployed adults, often women, at a distinct disadvantage. Clearly, it is unreasonable to assume that injuries that do not interfere with earning money are less significant than those that do. In many cases, such injuries -- that include severe pain, emotional trauma, mutilation, and damage to sexual or reproductive function -- diminish an individual's sense of self-worth and ability to enjoy life.  By capping damages on such personal injuries, the law immediately becomes inequitable, by, for example valuing the life of a high-paid executive more than that of a minimum-wage worker, child, retired senior citizen or unpaid homemaker.

The Gender Gap

As Lucinda Finley, a University of Buffalo law professor has reported, "certain injuries that happen primarily to women are compensated predominantly or almost exclusively through noneconomic loss damages. These injuries include sexual or reproductive harm, pregnancy loss, and sexual assault injuries." Because juries consistently award women more in noneconomic loss damages than men, any cap on noneconomic loss damages is likely to have a more profound effect on women, a blatant form of sex discrimination.

A Dreadful Example of Non-Economic Injuries

A grueling example of this type of inequity is evident in the case of Wisconsin resident Linda McDougal who received a totally unnecessary double mastectomy due to a mix-up in the pathology lab. Ms. McDougal never had cancer at all, but suffered not only the surgical and emotional trauma of the misdiagnosis and needless surgery, but is condemned to living with the resulting mutilation for the rest of her life. Unbelievably, the prominent South Carolina surgeon who testified before the South Carolina House Judiciary Subcommittee in support of caps on non-economic damages in his state, actually said the following: "She he did not lose her life and with a plastic surgeon she can have breasts reconstructed better than those which came before…[She] will have nice, firm breasts."

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