Politicians Fail to Listen When Doctors Speak out Against Med Mal Caps June 2, 2011.

If doctors speak out against medical malpractice caps, the public resonates with that. However, politicians think they are blowing smoke.

"What would happen if the relative of a politician, or a politician, were severely harmed by medical malpractice? What if they wanted to take their case to court because their life had been catastrophically affected and they needed medical care for the rest of their lives, but they found out they could only recover $250,000 if they were successful in their suit? What if their ongoing treatment would ultimately cost them millions for the rest of their lives?" asked Christopher Mellino. Mellino is a Cleveland medical malpractice lawyer and wrongful death lawyer of the Mellino Law Firm LLC, in Ohio.

Tough questions and so far, no one in the political arena has been in that situation. However, there is a doctor whose wife was badly disfigured as the result of an OR fire. He knows firsthand how any bill that moves to cap damages in medical malpractice cases would penalize the victim twice. Most legislation of this nature aims for the same cap on everything from mutilation to paralysis, from blindness to disfigurement and from pain and suffering to death. "If this makes you want to ask what happened to justice for the victim, then you have hit the main reason why so many oppose legislation of this kind," Mellino said.

Injured patients have rights. They trusted the medical professional they were seeing to do right by them. If the doctor does not do right by them and severely harms or kills them, the patient has the right to demand the doctor take responsibility for his or her actions. Even juries hearing medical malpractice cases have an ingrained loathing of capping medical malpractice damages when evidence of a medical fiasco that should have never happened, is right in front of their eyes.

Aside from victimizing a patient twice, offering medical professionals and even pharmaceutical companies immunity for their screw-ups will mean a lower quality of care for people. "If you were a doctor and you knew that no matter what you did, what mistake you made that harmed someone or what the results were, that you would have virtual immunity for those actions, would you still be as careful as you were when medical malpractice lawsuit awards accurately reflected the damages a medical professional had caused?" asked Mellino.

This is not to say that there are not highly conscientious physicians out there, because the fact is there are many who would still offer a superior level of care to their patients. What happens to the unlucky ones who fall through the cracks, get a less than competent doctor and wind up paying a high price for harmful or deadly care? What happened to justice for those harmed at the hands of those they placed trust in to care for them?

"What a victim of medical malpractice should receive is an award handed down by an impartial jury, not an arbitrary limit set by politicians. The jury is the judge of the facts for each medical malpractice case, based on the circumstances of that case. No two cases are alike and no one cap will fit all cases," Mellino said.

Although some states are also examining exemptions to a medical malpractice cap, the more things change, the more they remain the same. One state, North Carolina, is working to exempt death, permanent injury, disfigurement and the loss of use of the body from any caps. Needless to say, but lobbyists for the insurance industry want the whole thing kiboshed. "So, where is justice these days when it comes to medical malpractice lawsuits?" Mellino asked.