In 2007, Valerija Milosevic of Michigan had been recovering from a heart attack at the hospital when she fell out of bed and suffered facial fractures and a deep cut over her eye. To treat the cut, a hospital resident used a device called a thermal cautery that was placed near the then-75-year-old’s supplementary oxygen. When the device went near the oxygen, it exploded, "resulting in severe burns and permanent scars to Valerija’s face and shoulder," according to court records.
In a Michigan court room earlier this month, the family of the 78-year-old woman awarded a $1.2 million judgment announced plans to appeal. It would seem that the jury award is appropriate for the circumstances, but it is the judge’s decision to treat the case as a malpractice lawsuit instead of a negligence lawsuit which is providing the basis for the appeal. It is not merely a technicality, because if the claim is characterized as medical malpractice, then the award will be significantly reduced because of Michigan malpractice caps.
The same problem arises in Colorado. There is no damages cap for a claim of permanent impairment or disfigurement premised on a general negligence claim – for an example, a dangerous product results in the loss of a leg. The victim would be allowed to argue as to the permanent effect of that loss and the jury award what it determined to be a fair amount. But if the leg is lost because a surgeon amputates the wrong leg, then the claim for permanent impairment is capped at $300,000 in Colorado – even in light of the necessity to return to surgery for removal of the leg originally scheduled for amputation and thus leaving the victim a double amputee.
The inherent unfairness of these special standards demonstrates the urgent need to rethink damages caps for any type of claim. Why is it fair to provide less compensation for the identical injury merely because of the circumstances resulting in that injury?
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