Guest Columnist

A mother's perspective on the dangers of medical malpractice caps

Kathy and Jeff Schussler at the home of their attorney Marty Diaz in Swisher, Iowa, on Thursday, Aug. 15, 2019.  (Jim Sl
Kathy and Jeff Schussler at the home of their attorney Marty Diaz in Swisher, Iowa, on Thursday, Aug. 15, 2019. (Jim Slosiarek/The Gazette)

In 2017, I and other families, lobbied at the state Capitol against the Medical Malpractice Cap Bill, limiting non-economic damages to $250,000. That bill is pending again in this year’s legislative session. The medical institutions and insurance companies attempt to sell this legislation to our legislators on the pretense that medical costs will go down as a result of the passage of this bill. That narrative is false.

We lost our 21-year-old son, Dane, to medical negligence. Our case involved only non-economic damages. As someone who has lived through the entire litigation process including an eight-day trial, I can tell you it is a gut wrenching and brutal process no family wants to go through.

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The reality is that the defense, which represents the insurance companies, the hospital administrators and the medical providers, sets the tone and the course for how medical negligence cases unfold. They hold the information plaintiffs seek. In the majority of cases, the negligence is not revealed to us. It is only through actively pursuing records that we find mistakes were made. There is a two-year statute of limitations to file a medical malpractice claim in Iowa. If providers delay beyond that time, they are free of any liability.

The reason medical providers are required to carry medical malpractice insurance is to compensate victims when a preventable mistake is made. As ordinary citizens, we carry auto insurance for the same reason. We all make mistakes. If we hurt someone, we are supposed to apologize, address the problem and make amends. This is especially important for medical providers whom we trust, and who take an oath to “do no harm.”

Medical Malpractice Cap Laws have been passed in many states across the nation. In many states, these laws have later been found to be unconstitutional, and have been overturned by the courts. Caps will not reduce the cost of medical insurance. They will increase the profits of the insurance companies, and minimize opportunities to correct weaknesses of medical systems and doctors. More importantly, they will make patients less safe.

There is no transparency in our medical system. Our medical providers and insurance companies use public relations experts and legal counsel to protect the image of their organization and individual doctors. Medical providers distance themselves from patients when mistakes are made. Unfortunately, medical licensing boards are hesitant to hold doctors accountable. Therefore, it is up to malpractice victims to hold medical providers accountable. Medical malpractice cases are expensive to litigate. The cases are heavily screened and the attorneys take them on contingency. Without their representation, we are unable to seek damages. Plaintiff attorneys who represent the victims are often vilified, but the arrogant insurance companies actually drive the need to bring lawsuits to trial.

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Non-economic damages are awarded for loss of consortium or quality of life. The victims most affected by this bill are families who have lost children, elderly and stay-at-home moms. Families who are victims of medical negligence are a unit. Any injury or death of a family member affects not only the person maimed or killed but all members of the victim’s family. In cases where loved ones are injured, mothers may be turned into lifetime care givers for a child or husband. In states where cap bills have been enacted, juries are not made aware of the medical malpractice cap. The jury awards damages and the amount is then reduced by the court. Victims whose claim awards are exhausted then turn to Medicaid or Medicare and the taxpayer’s foot the bill for the medical negligence.

States that have $250,000 caps are sometimes referred to as “License to Kill” states because lawyers cannot afford to file medical malpractice cases. Parents of children, widows and elderly no longer have representation because in the heart of this legislation, they have no value. Advise your legislators to Vote “No” on a one size fits all cap.

Kathryn Schussler lives in Marion.

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