These types of damages, called economic damages, mean Amy can begin getting the treatment she needs. They don’t consider the pain, suffering, and loss of enjoyment of life Amy suffered by being in a locked-in state. The jurors were also asked to determine this amount and returned a verdict of $7 million in past pain and suffering and $28 million for future pain and suffering. These damages are called noneconomic damages and are meant to recognize the things taken from Amy that can never be replaced. Under Nevada’s medical malpractice laws, the $35 million in damages for pain and suffering that the jurors determined was fair for what Amy suffered will be automatically reduced to the legal limit of $350,000. This legal limit is called a damages cap.
The law certainly had that effect. It has made it incredibly hard for those injured by medical malpractice and lawyers who handle those cases to file lawsuits. In addition to the cap on damages, which jurors are not told about during trial, the law shortened the time in which a lawsuit has to be filed (from the previous two years to one year) and requires an affidavit from an expert witness to be filed with the lawsuit (which increases costs before ever filing the lawsuit). Most medical malpractice lawsuits require multiple expert witnesses, and it’s not uncommon for the injured person to have to spend $50,000 to $100,000, if not more, in costs to bring a case to trial. In Amy’s case, we spent over $750,000 in fees to bring her case to trial. The lawyers pay those costs upfront, but with the cap on damages, lawyers must be very selective on which cases they can afford to take to trial, or they could face a scenario where costs exceed the $350,000 cap. We were all promised these medical malpractice laws would improve Nevada’s medicine. For the past 20 years, however, we have seen the opposite happen. Nevada has some of the worst-ranked hospitals in the nation, shortages of critical specialists, and doctors who have been forced to leave other states because they posed a risk to patients but can now practice in Nevada because the laws protect dangerous doctors. KODIN was based on a similar California law passed in 1975 called MICRA. MICRA placed a cap in California on noneconomic damages of $250,000 and was based on the same argument as KODIN that doctors’ malpractice insurance rates were too high. After MICRA was passed, doctor’s insurance rates continued to rise, showing that the story about insurance rates was invented. MICRA had nothing to do with lowering insurance rates for doctors and everything to do with reducing the amounts insurance companies were forced to pay for medical negligence. For 50 years, the cap in California was never raised. But, in 2022, lawyers representing injured persons fought for a revision to the law. With the countless stories of clients who never received true justice as support, these lawyers convinced legislators to amend MICRA to raise the cap on non-economic damages to $350,000. Over the next 10 years, the cap will incrementally rise to $750,000 for non-death cases and $1 million for cases involving a death. While this still hardly seems fair, it is a big win after 50 years of draconian laws and is an example Nevada should follow. When Amy was injured, her son Gabriele was 5 years old. At the time, Gabriele’s father, Lawrence, had been recently diagnosed with terminal cancer and was hospitalized during Amy’s incident. Lawrence died shortly after Amy suffered her brain injury. Gabriele was left fatherless and with a mother who cannot physically care for him. Thankfully, Gabriele has a loving family who has been caring for him while at the same time fighting on Amy’s behalf. We are honored to have been able to fight for Amy, and we are not done fighting to make sure she receives the money needed to be provided compassionate care for the rest of her life. We are also ready to fight to change KODIN. It’s time for Nevada to change its laws. These laws do not protect patients or provide any incentive to offer higher medical care. While we would love for the cap to go away completely, it needs to be increased at the very least. If you want to help in the fight, you can contact your state legislators and tell them how unfair these laws are. Nevada’s legislature meets every other year and is currently in session.
You may be asking yourself how that can be. In 2004, Nevada voters were asked to vote on a ballot initiative to amend the Nevada Constitution to
include reforms to medical malpractice laws. Those of you who lived in Nevada then may remember TV commercials asking voters to “Keep Our Doctors in Nevada” — or KODIN. The argument behind these laws was that medical malpractice lawsuits were making malpractice too expensive for Nevada doctors and that doctors would have to leave the state if reforms were not made to these laws. It was a compelling narrative, and voters believed it to be true, voting to pass the reforms. Those reforms placed a cap of $350,000 on noneconomic damages in all medical malpractice lawsuits. The problem with the damages cap is that they seriously impact cases with the most severe injuries. If the goal was to stop “frivolous” lawsuits, capping damages in wrongful death and catastrophic injury cases isn’t the right solution. Under this cap, no matter how bad the injuries or the conduct of the person who caused the injuries, the maximum an injured party could receive is $350,000. This is true no matter how much a jury determines the damages are worth. And the cap remains no matter how many people were affected by the malpractice. For example, imagine a parent was killed due to malpractice and left behind a spouse and three children. If the family brought a lawsuit for wrongful death, the most the spouse and three children could recover is $350,000 for losing their loved one. Not $350,000 for the spouse and $350,000 for each child. $350,000 to split amongst all of them. That is the amount our laws say life is worth in Nevada. It is never adjusted for things like inflation (not that it would make the law any fairer), and the cap has not been raised since its creation almost 20 years ago. In reality, KODIN was legislation pushed by insurance companies. The idea of malpractice rates being too high and doctors fleeing the state was false. It was made up. Insurance companies saw a way to limit the amount they had to pay on malpractice claims. They strove to create an environment where injured persons and lawyers could not afford to file lawsuits on legitimate cases.
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