Who Loses When Tort Law Is “Reformed”?
Tuesday, July 14th, 2009
A cluster of 9 hepatitis C cases in Colorado has been traced to a drug-addicted operating room technician at Rose Medical Center in Denver. As many as 5,700 people may have been exposed to the virus and are being tested. Hepatitis C is spread by blood-to-blood contact and can lead to chronic, debilitating and lifelong liver disease, including cirrhosis and liver cancer. Some patients eventually may need liver transplants.
As they anxiously await the results of their tests, the Rose Medical Center patients also are learning that a positive test result could be a financial as well as a health disaster. If the patients sue Rose Hospital for malpractice, the amounts they can recover are sharply limited by Colorado tort law.
Colorado law places caps on both economic and non-economic damages. “Economic” damages are expenses the plaintiff can document at the time of the trial — bills, receipts, or estimates of medical treatment. Among other things, “non-economic” damages are awarded in recognition of the impact of an injury on the plaintiff’s life. Such awards can be critical for people who suffer catastrophic injury or long-term chronic illness.
Colorado’s “tort reform” law caps non-economic damages a plaintiff may be awarded at $300,000. Economic damages are capped at $1 million, although a judge has some discretion to increase that amount. However, given the unpredictable nature of chronic liver disease from hepatitis C, the actual lifetime costs of treating and managing the disease cannot accurately be estimated.
The right to sue for damages in court also is critical to people suffering from mesothelioma and other asbestos-related diseases. Most exposure to asbestos occurs in workplaces, and many people suffering diseases caused by asbestos exposure rely on the tort system to get the money they need to take care of themselves and their families.
The situation in Colorado is very similar to a recent hepatitis outbreak in Nevada. In the Nevada case, patients were infected because an endoscopy clinic had been reusing syringes and single-dose vials of medicine for multiple patients, a serious breach of standard hygienic practice. In Nevada also, tort law will make it difficult for infected patients to receive the awards they need to care for themselves.
Rose Hospital allegedly is at fault not because of its lab procedures but because of lax hiring and employee supervision practices. Technician Kristen Diane Parker is accused of stealing syringes of the painkiller Fentanyl, replacing them with her used and unsterilized syringes containing saline. The hospital knew Parker carried the hepatitis C virus when she was hired, although there is no law that bans infected people for working in hospitals.
Barbara O’Brien
