Victims Of Birth Injuries Have Already Been Harmed Once, Medical Malpractice Caps On Damages Add Insult To Injury

Medical malpractice caps are those which lower the non-economic damages for a victim of medical malpractice once he or she is awarded compensation by a jury of his or her peers, after that jury listens to testimony for what could be weeks, and after years of litigation. It just doesn’t seem right, does it?

Well it isn’t.

And it particularly isn’t right for birth injury victims. Consider this, birth injuries victims can be babies who are not even born yet. They are the most defenseless victim of medical malpractice as they can be injured due to the negligence of a healthcare provider even before they are born to have a chance at life.

Yet, the the federal government and other states have been fighting for and trying to pass medical malpractice caps to prevent this baby from having full rights to medical malpractice claims. This means that he or she will be harmed by a birth injury TWICE. Once by the doctor, and once the by government taking away her rights. How is this fair? How is this just and equitable?

It still isn’t.

This is why medical malpractice caps cannot be a one-glove-fits-all approach. And this is why the law shouldn’t be what is getting reformed. Our US Constitution gives us certain due process rights. If we don’t allow victims to have full access to the court and the full ability to litigate a case and reap the benefits of the case from an award, then we are violating the Constitution. This is what Wisconsin’s Supreme Court found in striking down their state’s legislatively enacted cap and medical malpractice.

When birth injuries cause medical malpractice, there should be no cap to lower it. Period. Here the victims are infants and newborns who are defenseless. We cannot make them defenseless again by taking away their full rights.