Friday, May 25, 2018

Recent State Constitutional Challenges Involving Medical Malpractice Law

As I have pointed out at some length, Download Worse than Pirates final, there is a close relationship between state constitutional challenges to medical malpractice limitations on tort recoveries and challenges to workers’ compensation inadequacy similarly grounded in state constitutions. Over at—which I highly recommend to those interested in thinking about evolving workers’ compensation law—two interesting medical malpractice cases have been featured recently.

First in Pennsylvania:

A mother and son who together experienced a failed liver transplant argued to the Pennsylvania Supreme Court on Monday that the seven-year med mal statute of repose should be struck down as violating the state constitution's "open courts" provision.  The statute of repose was one of many provisions included in the MCARE statute, passed in 2003 to deal with an alleged med mal crisis in Pennsylvania.

And another In Wisconsin:

In 2011, a Wisconsin woman had all four limbs amputated.  A jury determined health care providers were responsible by negligently failing to diagnose an infection and awarded her $25.3M.  The non-economic damages portion of the award was approximately $16.5M.  WI has a med mal cap on non-economic damages of $750,000.  The trial judge ruled the cap was unconstitutional as applied to the plaintiff's case.  The intermediate appellate court went further and ruled the cap was unconstitutional.  Tomorrow the Wisconsin Supreme Court hears arguments in the case.

Again, for links to the full stories visit TortsProfblog.

Michael C. Duff

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