Families of patients maimed by medical errors denounce lawsuit-cap proposals

Families of Iowans who were severely injured by medical errors traveled to the Statehouse on Thursday to denounce bills that would limit awards in malpractice lawsuits.

The families said if the bills were in effect, they probably couldn’t have found lawyers to take their cases, even though medical providers’ mistakes or neglect caused permanent disabilities or death of patients.

“I want every doctor to know that when they cause an injury to someone, it doesn’t just change the life of that person, it changes the life of an entire family,” Ingrid Gerling of Burlington told reporters. Gerling brought her 10-year-old daughter, Nyasia, whose right hand and arm are virtually unusable because nerves were torn away from her spine as medical professionals tried to pry her out of the birth canal during a difficult birth. The doctor had ignored clear signs that the birth should have been done by cesarean section, she said.

“This was not my fault. This was not my husband’s fault. This was definitely not my daughter’s fault. This was the doctor’s fault,” Ingrid Gerling said. “Why should we be left paying for the doctor’s mistakes?”

The Gerlings sued, and a jury awarded them $5.5 million. The Gerlings were among several families who spoke Thursday at a news conference organized by a group representing lawyers who bring such lawsuits to court.

Their lawyer, Brian Galligan of Des Moines, said the Gerlings’ award would have been limited to $250,000 under medical-malpractice bills moving forward in the Legislature. Under that scenario, they probably would be unable to file a lawsuit, because lawyers would shy away from their case, he said. Plaintiffs’ lawyers routinely spend tens of thousands of dollars to hire medical experts and cover other expenses, but the lawyers are only paid if such lawsuits are successful. They gain a percentage of the award.

Kelly Denham of West Des Moines spoke about the experience of her 20-year-old son, T.J., who was left with severe brain damage because of a surgeon's mistake while trying to fix a blood-vessel problem. T.J., who attended the news conference in a wheelchair, was an energetic student at Valley High School, his mother said, tearing up at the memory. But since the surgery, he can't talk, swallow, walk or sit up. "Because the doctor made a mistake, T.J.'s hopes and dreams of his future are gone, and so are the hopes and dreams of those who love him," she said as her son moaned behind her. "... Doctors are human, and they make mistakes, but they still need to be held accountable," she said.

Denham said afterward that her family reached a confidential settlement with Mercy Medical Center in the case. If the current bill had been in effect, she might not have been able to find a lawyer to take the case, she said.

The Senate has already passed one of the bills, and the House is considering a similar one. The bills would cap “non-economic damages” at $250,000. They define such damages as being for such things as “pain, suffering, inconvenience, physical impairment or mental anguish.” Proponents say the bills would help control malpractice-insurance costs for doctors, hospitals, nursing homes and other care providers.

Clare Kelly, executive director of the Iowa Medical Society, said Thursday that the bills would not limit other damages juries could award to patients harmed by medical errors. “We agree that severely injured patients should have the ability to recover their loss in future wages and future health care costs related to their injury. This is why the bill does not seek to cap economic damages,” Kelly wrote in an email to The Register. She denied that the bills would hamper Iowans’ ability to file suits.

Kelly, whose group represents physicians, said Iowa doctors pay higher medical-malpractice insurance premiums than those in neighboring states of Nebraska, Minnesota, South Dakota and Wisconsin.

Kelly cited an Iowa Insurance Division report on medical-malpractice claims paid, which she said showed that only $394,584 was paid in non-economic damages in Iowa medical-malpractice cases in 2015. But representatives of plaintiffs' lawyers disputed that figure, saying it only represents damages for "fright." They said it doesn't include substantial payments for such things as "pain and suffering" and harm to family relationships.

Brad Lint, executive director of the Iowa Association for Justice, said at the news conference that Iowa doctors pay some of the lowest malpractice insurance premiums in the nation. Lint, whose group represents plaintiffs’ attorneys, noted that the number of medical malpractice lawsuits filed in Iowa has dropped by more than half in a decade. He called the new bills “an arbitrary, government-knows-best power play,” which would add unnecessary limits on citizens’ right to seek justice in the courts. He said Supreme Courts in 11 other states had declared such limits unconstitutional, and he predicted Iowa's Supreme Court would likely do the same.

“We already have reasonable limitations on lawsuits — they are called juries,” he said. “Have you ever tried to get a unanimous opinion from eight Iowans on anything?”