If a mismanaged toe injury can be worth $11.5 million, what about paraplegia?  A suburban Baltimore jury recently awarded $3.5 million to a 53-year-old woman whose legs became paralyzed following vascular surgery.   So, a bum toe is worth more than three times the ability to walk?  Let’s look at the facts more closely and see whether they make any sense.

According to the newspaper account, doctors used an improper grafting technique that caused bleeding and consequent damage to Victoria Little’s spinal cord.  She walked into the hospital wearing high heels, but never walked again after the surgery.  The jury awarded $200,000 for the medical bills already incurred, $2 million for future medical bills and $1.3 million for pain and suffering.  The jury apparently gave Ms. Little nothing for lost wages.   Compare this jury to O. J. McDuffie’s, which awarded $10 million for lost wages and $1.5 million for pain and suffering to the highly paid NFL star in the toe-injury case.  Perhaps Ms. Little was unemployed before her surgery.

Lawyers call damages that can be precisely calculated, e.g., lost wages or medical bills, “special damages.”  Damages that are left up to the so-called enlightened conscience of the jury, e.g., pain and suffering, are called “general damages.”  In Little’s case, the general damage award represented nearly 60% of her special damages (1.3/2.2) but only 15% of McDuffie’s special damages.    Viewed this way, I could argue that Little’s jury was more sympathetic to her pain than McDuffie’s jury.  Being paralyzed ought to be compensated more than being forced out of a career.

Tort reform is so easy to trumpet as a way to fix health care until you consider someone in wheelchair who should still be able to walk.  I have my own ideas about how health care costs could be brought into line, but it has nothing to do with jettisoning the tort system.


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