Then there are some “fun” provisions.
One of them is a $250,000 statutory limit on non-economic damages in health-related lawsuits. This one came out of left field — I had no idea it was being proposed. Actual economic damages remain uncapped but things like pain and suffering.
I have a strenuous objection to this law in that it codifies actual and constructive fraud upon juries — the act specifically provides:
The jury shall not be informed about the maximum award for noneconomic damages. An award for noneconomic damages in excess of $250,000 shall be reduced either before the entry of judgment, or by amendment of the judgment after entry of judgment, and such reduction shall be made before accounting for any other reduction in damages required by law. If separate awards are rendered for past and future noneconomic damages and the combined awards exceed $250,000, the future noneconomic damages shall be reduced first.
Isn’t that special?
In addition the law limits contingency fees collected by attorneys. Are the limits reasonable? You decide — they start at 40% for the first $50,000 (the part that counts for most smaller cases!) and drops to 15% over $600,000. Isn’t that special — you can give up nearly half, but as the award grows (you really got reamed) and the case gets more complex and harder to prosecute the lawyers get less. Just, unjust, you decide.
There are also substantive limits on punitive damages. Actual malice or “substantial certainty” of knowledge of unnecessary injury is required. That’s a tough standard — is it just? You decide.
But what’s not arguable is that again there is a cap of two times the economic damages or $250,000, whichever is greater, and again the jury is barred from being informed of the limits.
So we’re actively concealing the truth from juries again. The limits may be just but active concealment and fraud upon a jury is not.
In addition there’s another nasty sop to the pharmaceutical and device industry: Anything that conforms to FDA standards is exempt from punitive damage awards. Isn’t that nice? So if the FDA approved it and it was later shown to be intentionally defective, tough crap — you can’t sue for punitive damages.
It gets worse — a health provider who dispenses or provides an FDA approved product cannot be named in such a suit even if they have actual or constructive knowledge of the dangerous nature of the product.
There is only one exception: If the FDA itself was bribed or information was intentionally fabricated or withheld from the FDA’s processes.
This is a literal “screw the patient” license for dangerous procedures and drugs that the government is free to hand out at will! If you can get it through government approval through anything short of felonious conduct then that’s tough crap for you as a patient.