The Virginia Supreme Court slashed a $7 million jury verdict to only $1.6 million, depriving a 12 year old girl of funds to care for cerebral palsy and kidney damage that was caused by doctors who bungled an exam while she was still a fetus in her mother’s womb.
The January 10 decision is a cruel miscarriage of justice considering that the court relied on insurance company propaganda behind the state’s medical malpractice damage cap. The decision makes malpractice insurance available for the medical profession at the expense of the victims of bad doctors.
Cerebral palsy is a permanent disability marked by impaired muscle coordination (spastic paralysis) and impaired movement, typically caused by damage to the brain before or at birth. Expert witnesses testified at the trial that the girl, Marissa R. Simpson, would need up to $8 million to care for her disabilities during her lifetime. By the time the case went to trial in May 2012, the family had spent more than $1.75 million on medical care for her.
The damage caps were enacted as part of an anti-consumer movement in the law known as “tort reform.” Starting in the 1970s, they were designed to severely cut awards made by juries. This has the legal effect of denying a citizen’s 7th Amendment right to a jury trial.
The girl’s mother, Marsha Simpson, went to Dr. David Roberts at the Carilion New River Valley Medical Center in Christiansburg, VA, for an amniocentesis procedure, to determine if the fetus’ lungs were mature enough to induce early labor. The doctor bungled the routine procedure and complications occurred, according to evidence at the trial. His medical partner performed a Caesarean section later in the day. The newborn suffered brain damage from a lack of oxygen.
The family sued the doctors and won, but the trial judge reduced the award for baby Marissa for $1.4 million to bring them within the malpractice cap. The state supreme court upheld the judge.
Attorneys for the child argued on appeal that Marissa was a fetus when she was injured, and therefore did not meet the definition of a “patient” under the damage cap law, because she was not yet a “natural person.” They argued that her claims were common law claims for medical malpractice, not covered by the damage cap.
But the Supreme Court ruled that once the child was born alive, she became a natural person covered by the malpractice law. It said that “a fetus is part of the mother, and injury to the fetus is injury to the mother.”
Justice Donald Lemons, writing for the court, gave a broad reading to the state medical malpractice law, quoting the law’s preamble about the difficulty that health care providers have in getting medical malpractice insurance. This language is drawn from debunked insurance company claims that large jury awards prevent doctors from starting or continuing a medical practice.
“The purpose of the statutory cap is to provide a ‘security blanket’ to health care providers and their insurers,” the court ruled.
The case is Simpson v. Roberts, case number 121984.