A sad tale of a severely brain damaged child was told in The Forum Consumer Attorneys of California Magazine on MICRA (Medical Injury Compensation Reform Act) in Volume 41, number 3.
The Olsen's Story
Unfortunately, this is just one of hundreds or even thousands of cases across the country today. This family is determined to change California's cap on human suffering which is currently at $250,000, and rightfully so. This family's nightmare all began when their son tripped and fell onto a sharp stick while running outside a relative's cabin in the mountains. The stick went into the right front part of his mouth, face, and sinus cavity. The child was treated at a local hospital, was tested for infection, and then sent home. Shortly thereafter the boy had become lethargic and had a fever, so his parents took him back to the hospital. The parents had asked for a brain scan, but the medical team diagnosed the child with meningitis, which was the first mistake of many that eventually led to a two-week medically induced coma. The result was a severely brain damaged (brain injury ultimately caused cerebral palsy) and blind toddler who cannot even perform the most basic of tasks, and an undiagnosed and ruptured abscess inside the boy's skull. This could have all been stopped if the doctors listened to the parents and conducted a brain scan.
The even sadder part of this story is that MICRA capped the jury verdict of $7.1 million for pain and suffering damages case to $250,000. The parents did receive $4.1 million in economic damages, but this number was reduced by a quarter because of lawyers' fees, and then another $115,000 was taken off for expert witnesses. This child has needed and will need a tremendous amount of support in school, therapy, and these parents will face an incredible amount of medical bills for the rest of their lives. His parents fear the money will run out, and it probably will. Their son is now 21 years-old and has had 23 surgeries. These parents are taking an active stance to change MICRA and to speak about how it has affected their lives. A quote from the boy's father that leaves a chilling effect reads, "Unfortunately, if you kill a child, there's no economic damages."
Are these Laws Constitutional?
One lawyer, Robert S. peck of the CCL Firm argues that these cap laws can be constitutionally challenged. For example, the Illinois Supreme Court has held that the cap on noneconomic damages for medical malpractice cases violated the separation of powers. Forum Magazine; citing Lebron v. Gottlieb Memorial Hospital (Ill. 2010) 930 N.E.2d 895. In addition, the USSC "has unanimously held that 'the jury are judges of the damages.' " Forum Magazine; citing
Feltner v. Columbia Pictures Television, Inc. (1998) 523 U.S. 340, 353. The Supreme Court in Georgia has held that the noneconomic damages cap violates the right to trial by jury. Forum Magazine; citing
Atlantic Oculoplastic Surgery, P.C. v. Nestlehunt (2010) 691 S.E. 2d 218. Hopefully these cases are the beginning of a reform of current state laws that have a cap on damages to plaintiffs that deserve and need the money for economic or pain and suffering reasons.
Link to Consumer Attorneys of California Website on MICRA
Shea & Shea is a nationally recognized personal injury law firm located in San Jose, California. The firm has extensive experience in representing individuals and their families in cases involving
catastrophic injuries including
wrongful death and
traumatic brain injury. Since 1966, Shea & Shea have successfully represented the seriously injured and their families in both state and federal courts. To learn more, visit us at
www.Shea-Shea.com or telephone 888-989-SHEA.