The issue:

Nuclear verdicts in medical malpractice cases are occurring everywhere, and Alabama is no exception. It’s no secret that healthcare providers throughout the state are operating in the red due to low reimbursements and higher operating costs, along with other issues. Due to the nuclear verdicts, the medical malpractice premiums that healthcare providers are paying are also increasing. If this course continues, the state’s healthcare providers will either be forced to close their doors and/or leave the state to move to another state where they are more protected by that state’s laws. In Alabama, they are currently unprotected.

How did we get here?:

Alabama had a statutory cap on wrongful-death medical-liability punitive damages awards which is contained in Ala. Code §  6-5-547. However, the Alabama Supreme Court in 1995 held the cap on wrongful-death medical-liability punitive damage awards unconstitutional. (see Smith v. Schulte, 671 So. 2d 1334 (Ala. 1995).  That opinion was written back when the Alabama Supreme Court was dominated by plaintiff friendly justices. The make-up of the court has definitely changed since 1995. In 1995, all the justices were elected or appointed as Democrats. Currently, all the justices on the court have been elected or appointed as Republicans. Furthermore, many states have ruled that caps on damages are constitutional. Therefore, the constitutional issue is a state-by-state decision.

Through the years, many states have reviewed the constitutionality of their damage “caps” due to pressure from their state’s respective plaintiff attorneys bar and from legislators who are well funded by the plaintiffs’ bar in that state. Four of those states found that previous attempts to limit damages allegedly violated some provision of that state’s respective constitution. Two additional states, including the state of Alabama, have had their medical malpractice damages cap struck down as completely unconstitutional.

What can be done?

Thirty-two (32) states in the in the US have some type of cap on medical malpractice awards. Twenty-six (26) cap non-economic damages in medical malpractice cases, while six (6) have “total caps” that limit both economic and non-economic compensation in medical malpractice cases.

In essence, if in the future the Alabama Supreme Court reverses the Schulte opinion that Ala. Code $6-5-547 is unconstitutional, then tort reform in wrongful death medical malpractice cases is not necessary. Ala. Code § 6-5-547 is a constitutional statute that is part of the Alabama Code and has not been repealed, it remains valid and is applicable to wrongful-death medical-liability actions.  The cap, when it became the law, was initially put at $400,000. When the amount of the cap is adjusted by the Consumer Price Index as required in § 6-5-547, the current amount of the cap is $2,547,216.  This number should be a satisfactory amount to both the plaintiff attorneys and the health care providers on medical malpractice wrongful death cases. This certainly does not imply that every medical malpractice wrongful death case is worth anywhere near the capped amount. Only the most egregious of cases would hit the cap. The cap would merely be the outlier and the value of most cases would fall well below the capped amount.

Rather than wait for an absolute crisis to happen, (hospitals shutting their doors, physicians leaving the state, etc.…) the state would be wise to pass some type of medical malpractice tort reform if the Alabama Supreme Court continues to rule that “caps” are unconstitutional. There are many roadmaps to follow as the majority of states have medical malpractice tort reform in place. The reform may require a general vote on the constitutionality of the caps, which other states have also conducted successfully. Let’s finally do something to protect our healthcare providers rather than making sure the plaintiff attorneys in our state continue to accumulate large amounts of wealth suing our healthcare providers that benefit no one but themselves.