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Additional Medical Malpractice Caps Aren’t Necessary, Several Attorneys Agree

Medical malpractice lawsuits are often misunderstood by the public as lacking in merit and unnecessarily threatening to doctors and other health care professionals, according to the Buffalo Law Journal in an article by Michael Petro titled “Malpractice Recovery Caps Not the Answer.” This perception can lead to legislative proposals like caps on damages, the article says.

Laraine Kelley, a renowned medical malpractice attorney, was interviewed extensively for the article, which is available at the Buffalo Law Journal’s website.

Public misperception about medical malpractice claims

Mr. Petro notes that Ms. Kelley “has worked in personal injury law since the mid-1980s and occasionally heard claims that a ‘so-called crisis’ in medical malpractice was occurring.” It usually resulted in initiatives that seemed to fade as attention to the issue subsided, the article quotes her saying.

“Medical malpractice lawsuits have gotten a bad name over the years and often are perceived by the public as frivolous,” Ms. Kelley said, noting that 35 states already use caps to limit damages for pain and suffering, and there’s talk of further caps to protect the interests of physicians.

“Much of the talk about such lawsuits lacking merit and being dangerous to physicians is misguided,” she said. “While there have been some headline-grabbing payouts in this area, it is not the norm, and most of the cases involved death or catastrophic injury.” Mr. Petro says Ms. Kelley estimates that just one of 100 claims that she comes across ultimately proceeds to a lawsuit, and that’s typical for most attorneys.

Tougher standards for these cases

By law, in order to sue, Ms. Kelley told Mr. Petro, an attorney must vet these types of cases more carefully than any other lawsuit. Also, the cost to pursue them can be astronomical, adding that she spent nearly $10,000 up-front on a case only to be told by an expert that it could not be pursued.

“There is a higher standard in a medical malpractice case. A plaintiff who wants to proceed must first get an affidavit of merit. Any other type of lawsuit would not require an attorney to consult with an expert before even filing suit,” according to Ms. Kelley. “And experts are not easy to find for these cases.”

“Over the years, frankly, the coverage in this area has probably generated and perpetuated more myth than it has revealed facts,” Ms. Kelley told Mr. Petro. “The coverage in this area has led to the public conclusion that a lot of things are true that I don’t think are true.”

Ms. Kelley said she hopes there isn’t further capping of medical malpractice recoveries, according to Mr. Petro. She questions the fairness in capping a case where there is injury that has an impact on a person’s well-being and future earning potential but not doing it for similar cases that involve medical malpractice.

“A doctor who causes grievous injury shouldn’t be responsible but anyone else who does should,” she said. “Logically, it doesn’t make any sense.”

About Laraine Kelley

A senior partner at the law firm Lipsitz Green Scime Cambria, Laraine Kelley concentrates her practice in the areas of personal injury law, including medical malpractice, construction accidents, automobile injuries, and products liability. She has been singled out as one of the region’s authorities on medical malpractice for plaintiffs by Business First.

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