The Utah Supreme Court today struck down the Utah cap on damages in medical malpractices cases when the patient dies as a result of the malpractice.
The Court began its decision “for millennia, physicians have sworn, ‘With regard to healing the sick, . . . I will take care that they suffer no hurt or damage.’ And for perhaps just as long, the sick have sought redress when hurt or damage inevitably occur.”
This may surprise many reading this blog and will definitely surprise most in the legislature. Personal injury law is not new. The persians had it, Moses instituted it as soon as the Israelites fled Egypt, the Romans had it, as well as almost all other civilized societies. Of course, the exact form of these laws has changed over time. The version we follow in the United States follows the law of England. Medical malpractice cases in England can be found as early as the 1300’s.
Every few years, the legislature decides that our society is facing a personal injury litigation crises and adopts some new form of restriction on personal injury law. They do this, not because the law has changed, but because those wishing to escape responsibility for their own negligence have become more successful in hiring lobbyists to get their agenda through the legislature.
In 1986, the Utah legislature passed legislation capping the damages that doctors would be required to pay should they commit medical malpractice. One of the caps imposed was a limit on non-economic damages. Throughout the years, the legislature has tinkered with this cap. Currently it is set at $450,000.
Under this statutory scheme, Greg Smith sought care at the Salt Lake VA. He had a back surgery and was discharged with pain medications. His parents claim that the VA acted negligently in prescribing the pain medications and that their son died as a result of that negligence.
Article XVI of the Utah Constitution reads, “the right of action to recover damages for injuries resulting in death, shall never be abrogated, and the amount recoverable shall not be subject to any statutory limitation, except in cases where compensation for injuries resulting in death is provided for by law.”
When considering the cap on damages, the legislature did not address this constitutional limitation. It is not clear why they chose to ignore it because many citizens pointed it out before the cap was passed.
The Supreme Court today analyzed the statute in light of the constitutional prohibition on damage caps. The Supreme Court looked back on the laws of the Utah Territory before the constitution was adopted. It found many cases in which non-economic damages were awarded in wrongful death cases. Those cases included awards for the loss of nurture, the loss of society, the loss of comfort, the loss of companionship, assistance, protection and assistance. The Supreme Court held that because these damages were allowed in Utah before the Utah Constitution was adopted, the constitutional prohibition was in conflict with the statute. Accordingly, the court struck down the statute, at least as it applies to wrongful death cases.
This decision comes as no surprise to those in the industry. For years, plaintiff’s attorneys, defense lawyers and insurance companies have acted as though the cap was unconstitutional. They acted this way because it was fairly obvious to them that the Supreme Court would eventually rule that way.
Personally, I agree with this decision. I always found it troubling that the Utah State legislature gives a pass to doctors. Whey not give the same pass to drivers, business owners and others. Well, the obvious reason is that the law requires those who injure or kill others to take responsibility for their wrongful conduct. All civilized societies have been centered around that principle. In recent years, legislators have abandoned their common sense and have simply passed laws based on who has the best lobbyists. Because the medical industry has the highest paid and best lobbyists, they get privileges not enjoyed by anyone else. In my opinion, that is no way to run a government.
