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Medical malpractice damage caps: a persistent issue

Medical tort reform has been a vigorously debated issue across the country for decades, including in New Jersey.

A central element of discussions in forums ranging from patient advocacy conferences and annual doctors’ meetings to insurance company symposiums and lawyers’ workshops is medical malpractice damages.

An oft-repeated query, which invariably results in a strong aligning of groups and polar positions, is this: Should there be a ceiling on patient recoveries? In other words, should malpractice awards be capped for victims injured by shoddy medical treatment?

Unsurprisingly, malpractice insurers and medical groups representing doctors roundly endorse caps. They say that failure to impose caps on noneconomic damages (which include things like extreme pain and suffering, mental anguish and disfigurement) scares doctors away from medicine and raises the costs of health care for all.

There is a flip side to that argument, with critics from across a broad spectrum noting that the imposition of recovery limits effectively shuts the courthouse door on injured victims of bad medical treatment. Malpractice caps, they say, certainly don’t benefit the people most hurt by bad doctors. In fact, they benefit those very doctors by allowing them to continue making errors with little downside.

Although a number of states have a monetary ceiling on noneconomic damages, New Jersey is not one of them. The state does, however, cap victim recoveries for punitive damages.

Malpractice ceiling stories and developments are never in short supply. Recently, for example, Republican legislators from Missouri sought to resurrect a malpractice cap that the Supreme Court in that state declared unconstitutional in 2012.

The proposed bill -- which would cap noneconomic damages at $350,000 -- is working itself through the Missouri House and must garner approval in the Senate, which seems unlikely. Similar legislation failed to do so in the past.

One attorney who represents plaintiffs injured by doctors’ negligence says that the attempt to curb recoveries for harmed patients “shocks the conscience.”

Source: St. Louis Post-Dispatch, "Caps on medical malpractice lawsuits win OK from Missouri House panel," Marie French, Feb. 5, 2014

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$7.4 Billion Medicaid Recovery

Breslin and Breslin, PA, Donald A. Caminiti, Esq., was one of six law firms selected by the Attorney General of the State of New Jersey to act as special counsel to represent it in its lawsuit against the tobacco industry to recover Medicaid and other health related costs incurred by the state resulting from tobacco related illnesses.