Michigan, US– 1st September, 2019: Dominic Sousa was 2 years old when he fractured his arm jumping on a trampoline at a Mother's Day party in 2002. At Children's Hospital, a Michigan doctor on a training rotation in New Orleans set Sousa's injured arm in a cast, but it soon began to swell uncontrollably.
Within days, Sousa had suffered permanent muscle and nerve damage, and he has lived ever since with his dominant arm crippled, barely able to make a fist.
A New Orleans jury unanimously decided on Aug. 22 that Sousa is owed $10 million in damages, but the award — thought to be the largest in the state since 2003 — isn't significant only because of its size.
Because his physician at Children's, Dr. James Prosser, was not properly registered under the state's medical malpractice act, Sousa could actually get what the jury awarded him. Prosser's failure to register means the jury's award won't be automatically reduced to $500,000 under a state-mandated cap imposed in 1974.
Carey Wicker, one of Sousa's attorneys, said the judgment will be submitted Tuesday to Civil District Court Judge Ellen Hazeur. The judge can still reduce the award, and the defense can still appeal the verdict.
The attorneys for Prosser, Garden City Hospital in Michigan and its parent company, Prime Healthcare Services, declined to comment Friday because the case is still open. Children's Hospital was originally sued but was removed as a defendant.
According to the Sakla Law Firm and Capitelli & Wicker, the firms that represented Sousa, Prosser "manhandled" their client's arm before putting it in a "substandard" cast with a plaster spike that cut off blood flow, damaging the nerves and contracting his muscles.
The Sousas brought their son back to Children's 19 hours later but were sent home, Wicker said. It was five days and two visits before the cast was removed; by then the damage was done.
Wicker said Sousa, now 19, always dreamed of joining the military but was told by a recruiter after four years in ROTC that he'd never make it.
"A routine simple fracture should never end up with this outcome,” Wicker said, noting that three orthopedic surgeons testified to that effect.
It is not clear why Prosser wasn't properly registered under the state's malpractice act, but the consequences of what could have been just an oversight or paperwork error will have a dramatic effect on what the ruling means to Sousa and his family.
Louisiana is among many states that cap medical malpractice awards — part of a wave of reforms instituted by states beginning in the 1970s to prevent spiraling insurance liability premiums that were causing doctors to close their doors or move to other states.
Louisiana's cap of $500,000 is near the bottom end of the scale among the roughly 30 states with caps, though it's not the lowest and it has plenty of company. But detractors point out it has not been adjusted, even for inflation, since it was enacted in 1975.
It applies regardless of how many plaintiffs or defendants there are, and it applies not just to a patient's difficult-to-quantify "pain and suffering," but also to the amount of economic losses incurred by the plaintiff. Medical costs are not capped, though any future medical costs are paid as they are incurred and can be contested by the provider.
Also, doctors and providers found to have been negligent are responsible for only the first $100,000 of any award. The Louisiana Patient's Compensation Fund, which is funded by surcharges paid by doctors in addition to their insurance premiums, pays anything beyond that figure up to the $500,000 cap.
Proponents of the law say fear of uncapped medical malpractice awards causes providers to practice "defensive medicine" to avoid being sued, such as by ordering unneeded tests, which they say drives up healthcare costs.
David Abramson, who chairs the medical malpractice section of the Louisiana Association for Justice — the state's trial lawyers association — said catastrophic cases illustrate the severe impact the cap can have on the justice system.
"We hear about frivolous lawsuits all the time," he said. "There are penalties for filing frivolous lawsuits; those are handled. The folks that are the most impacted by the cap are not the cases that are worth less than $500,000; it’s those that are catastrophically injured or killed.”
In 2015, a New Orleans jury awarded 8-year-old Chela Butler's family $8 million after finding her doctors did not properly treat her for the swine flu that killed her in 2009. The award was then automatically reduced to $500,000.
"What this highlights is the gross inequity of the cap," Wicker said. "The cap does not deter frivolous lawsuits; the cap punishes catastrophically injured claimants. That’s all it does.”
The Louisiana Hospital Association and the Louisiana State Medical Society did not return calls for comment Friday.
Abramson said that while he doesn't believe there should be a cap at all, it should at least have been adjusted for inflation. According to the Bureau of Labor Statistics' inflation calculator, $500,000 in 1974 is equivalent to $2.8 million today.
Abramson said the state's system was modeled on the one established in Indiana, where the cap stands at $1.25 million today.
Abramson said capping economic losses means a gravely injured person who made $250,000 a year but can no longer work can recover only two years worth of wages. The cap is the same regardless of how many children or other dependents the plaintiff needs to support.
Abramson also said the compensation fund,which paid out $138 million in claims in fiscal 2018, is hardly strapped for cash, with $1.1 billion in assets.
Several states' supreme courts have in recent years ruled that malpractice caps are unconstitutional. In 2017, the Florida Supreme Court found there was no evidence of an ongoing medical malpractice crisis to justify an arbitrary cap.
However, Louisiana does not appear poised to go that route anytime soon.
The Louisiana Supreme Court has upheld the cap twice in the last 27 years, ruling it constitutional because the Legislature's intent in imposing it was to protect access to healthcare.
"Any discrimination resulting from the cap, while unfortunate, substantially furthers a legitimate state interest," the court declared in 2012.
The ruling noted that the issue of "perceived under-compensation" is unrelated to the law's constitutionality and therefore is up to lawmakers to tackle if they see fit.
Writing at the time of the ruling, the law firm Breazeale Sachse & Wilson, which represents health care providers in the state, published an analysis of the court's opinion that found the malpractice cap was as "solid as it has ever been."
Noting that an effort in the Legislature earlier that year to increase the cap to $750,000 and exclude economic losses didn't even make it out of committee, the firm wrote: "Bottom line: unless we see a major shift in the makeup and ideology of the Louisiana Supreme Court or Louisiana Legislature, healthcare providers will remain protected by the $500,000 damages cap."
Source: https://www.nola.com/news/courts/article_782442fe-cb57-11e9-884d-d3ba30540da3.html