The family of a Nevada woman who died due to a medical misdiagnosis is preparing to challenge the state’s cap on damages in medical malpractice lawsuits.
The wrongful death lawsuit was filed by the family of Adeline Villegas, who died in August 2007 of a ruptured ulcer and peritonitis after being misdiagnosed by Dr. Mahmud A. Sheikh as pancreatitis. The lawsuit was brought in 2008 against both Sheikh and Spring Valley Hospital.
The family’s lawsuit ran into the state’s medical malpractice cap of $350,000 on non-economic damages, which defense attorneys argue is the amount that would have to be divided among Villegas’s husband and six children. The plaintiffs are challenging that interpretation, saying that the cap should apply to each individual claimant, which would raise the amount awarded for pain and suffering to $5.6 million. They are also ready to challenge the constitutionality of the entire malpractice damage cap if the court does not agree with their interpretation of how the cap should be applied.
About 30 states currently have damage caps in some form, but they have increasingly been challenged by plaintiffs with medical malpractice lawsuits. State Supreme Courts in Illinois and Georgia have thrown out similar damages caps over the last year, saying that the imposition of caps by the state legislatures violated the plaintiffs’ rights to a trial by jury, since the cap overrode the jury’s judgment on what the compensation for those cases should be.
Physicians in Nevada say that the caps keep their insurance premiums down and keep doctors from fleeing the state. However, a recent high-profile Hepatitis C outbreak involving a Las Vegas endoscopy clinic has cast physicians in the state in a negative light, and may result in a court that is unsympathetic to their cause.
The current Nevada malpractice caps were approved by voters in a 2004 campaign by physicians across the state.
California was the first state to enact a damage cap in 1975, specifically limiting the non-economic damages in medical malpractice lawsuits. According to the National Conference of State Legislatures, as of 2005 ten states capped recoveries specifically on medical malpractice cases and another 22 have caps that are not limited to medical malpractice. About a dozen states also have caps on punitive damages.