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Americans Don’t Like The Caps On Damages They Know About.

Posted by Andrew J. Barovick | May 20, 2015 | 0 Comments

It often takes a tragedy, such as the Amtrak derailment in Philadelphia , to wake Americans up to the cold, hard realities behind arbitrarily-imposed limits on money damages.  Amtrak, a monopoly whose reputation for prior-century levels of safety precedes it, will never have to pay out more than $200 million dollars to victims of last week's crash.  This will result in gross unfairness, since, as CBS reports in its article, “[e]xperts predict the liability from the crash, which left eight people dead and more than 200 injured, would exceed the cap.”

The cap, which is nice for Amtrak, but disastrous for those injured or killed due to Amtrak's safety lapses, was created in 1997, and has never been adjusted upward for inflation.  CBS reports that had inflation been taken into account, the cap would be just under $300 million now.

Not only are victims of the derailment upset about the likelihood that they will never be fairly compensated for their injuries–some of which are life changing–but ordinary Americans are outraged, according to most news outlets.  That's a good thing, because when citizens learn about unfair laws that protect large corporations at the expense of victims of negligence and their needs, sometimes things change.

Unfortunately, victims of medical malpractice are also limited by caps on their recoveries, in more than half of our states.  Forget, for a moment, that America's largest bar association, the American Bar Association,  has always maintained that such caps do not do anything toward solving the so-called “medical malpractice crisis” that increases malpractice premiums for doctors.  The more insidious results of such caps are that: (a) they deprive victims of medical errors of their 7th Amendment right to a trial by jury , by removing from the jury its right to set appropriate damage amounts; and (b) they deprive severely injured victims of medical malpractice the compensation to which they are entitled, when dealing with pain and suffering for what will often be the remainder of their lives.

So, be outraged about the shabby way that the victims of Amtrak's carelessness and disregard for safety are being treated.  But please take a moment to also consider the plight of the thousands of victims of medical negligence who will never get their health back, and more insultingly, will never be properly compensated for the carelessness of the doctor or hospital that caused their injury.

About the Author

Andrew J. Barovick

Mr. Barovick is a graduate of Columbia College and Cardozo School of Law. He began his legal career at the Queens District Attorney’s Office, where he tried over 20 felonies to verdict, and argued an equal number of appeals before the Appellate Division, Second Department, the New York Court of Appeals and the United States Court of Appeals for the Second Circuit.

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REPRESENTATIVE VERDICTS & SETTLEMENTS:

$7.9 million dollars for infant client who suffered severe brain injuries due to post- delivery medical malpractice.

$500,000 wrongful death/medical malpractice settlement on behalf of patient brought to hospital emergency room with serious injuries who suffered complications while unmonitored and died.

$425,000 wrongful death/medical malpractice settlement during trial on behalf of senior hospital patient whose surgeon failed to timely address her worsening symptoms, resulting in her death.

$250,000 to young man whose physician failed to diagnose an impending torsion testicle, causing the loss of the affected testicle.

$200,000 to young mother whose OB/GYN failed to timely diagnose and treat her ectopic pregnancy, resulting in excruciating, long-term pain and the need for surgery to address the ectopic pregnancy once it was diagnosed.

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