EDITORIAL: The sharks can smell the blood – Yet trial lawyers complain about damage cap

Las Vegas Review-Journal

The most dangerous place in Las Vegas these days is the space between a personal injury lawyer and any of the more than 40,000 former patients of the Endoscopy Center of Southern Nevada.

The trial bar went into a frenzy upon learning that willful disregard of safety protocols at the endoscopy center infected at least six people with hepatitis C. Each of the 40,000 people who underwent procedures at the clinic over the past four years is a prospective client, even those fortunate enough to have avoided contracting a blood-borne disease.

At least 14 lawsuits have been filed against the clinic since last Friday, and hundreds more undoubtedly are on the way. Regulatory and criminal investigations into the public health crisis have just begun, but the lawyer class is united in claiming that justice will never be done because the state’s $350,000 cap on noneconomic damages in medical malpractice cases will make it much tougher for anyone to win the lawsuit lottery.

Yet there is no cap on actual damages. And already, lawyers are searching for ways to bypass the cap on noneconomic damages by making claims outside the realm of medical malpractice. Lawsuits against the clinic’s operators seek damages for fraud, civil conspiracy, product liability and negligent hiring, training and supervision.

Meanwhile, referring physicians who knew nothing of the endoscopy center’s unconscionable practices can probably expect to be sued. Watch for many thousands of former patients who have suffered nothing more than the expense, inconvenience and anxiety of blood tests to seek damages far beyond a simple reimbursement.

Don’t expect their lawyers to urge restraint. This will be some of the easiest money many valley attorneys have ever made. State and local authorities will leave no stone unturned in their investigations, the findings of which will eventually be made public and become devastating evidence in civil court. For many of their clients, attorneys will receive a handsome reward for doing nothing more than writing a demand letter.

Yes, those few people who face a lifetime of illness and premature death as a result of the clinic’s careless practices certainly deserve the public’s deepest sympathy. These people merit compensation for their future care, their loss of wages, their diminished quality of life and their future pain and suffering.

But Nevada voters put the cap on noneconomic damages in 2004 for good reason. Nameless insurance conglomerates don’t dip into a magic pot of Monopoly money to pay vast sums for unquantifiable pain and emotional stress. Everyone pays these judgments through higher costs for office visits, medications and hospital bills.

Hundreds of careful, compassionate physicians are still working in Nevada because their malpractice insurance rates have stabilized as a result of this cap. Why should these doctors — and their patients — pay their entire careers for the recklessness of a few bad apples?

Justice cannot be achieved solely through compensation. Most medical malpractice cases generally involve mistakes made in good-faith efforts to help patients. But instances of gross malpractice, such as this case, aren’t meant to be settled only in civil court. They involve regulatory penalties and even criminal prosecutions.

This crisis has the potential to not only ruin a number of lives, it could lay waste to the region’s entire health care system, forcing malpractice insurers to abandon the market or boost premiums so high that physicians start fleeing for less hostile environs. But that’s meaningless to the lawyers who want to use this mess to bellyache about the damage cap.

“It’s a drop in the bucket compared to the industry as a whole and the ability of insurance companies to rebound. … Insurance companies rule the world,” attorney Richard Harris told the Review-Journal.

The frustration trial lawyers express with the state’s cap on noneconomic damages is transparent. It’s all about their own bank accounts.

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