Congress shouldn’t put a cap on medical malpractice suits

In February 2015, Kathleen Astleford’s family physician referred her to an ear, nose and throat specialist at Delta Medix for an evaluation of her throat. Four days later, a physician at Delta performed a biopsy of Astleford’s right tonsil. The subsequent diagnosis was dire: Astleford has squamous cell carcinoma. In other words, it was cancer.

For most patients, this diagnosis alone would reason enough to be frightened and worried. But Astleford’s medical nightmare was just beginning. Indeed, when one reads Astelford’s pleadings, and the evidence she has accumulated in support of them, her powerful allegations become very clear.

{mosads}She points to strong evidence that Dr. Turrisi, who was the physician she was referred to by the doctor who performed her biopsy, got off to an especially inauspicious start. It began when he incorrectly noted that Astleford had been diagnosed with cancer on the left side of her tonsil, rather than the right.

Nevertheless, Dr. Turrisi recommended she undergo 35 radiation therapy treatments – the maximum dosage considered safe – after which, he assured her, she would be cancer free.

Astleford began an aggressive series of radiation treatments shortly thereafter, on April 6, 2015. As part of her radiation sessions, she was instructed to wear a long shoulder mask that prevented her from observing what was happening during those treatments.

Three weeks later, on April 27, Astleford asked Dr. Turrisi why the left side of her neck was red, and why she had sores on the left side of her mouth and tongue, when it was the right tonsil that was to be treated with the radiation therapy.

“Everything looks good,” Dr. Turrisi reassured her. But nothing could have been further from the truth.

It wasn’t until May 12, 2015, just one day after again reassuring Astleford when all was well that Dr. Turrisi admitted the truth: He had performed 26 unnecessary radiation treatments on the wrong side of her tonsils.

His solution? Perform an additional 17 radiation treatments on the other side, bringing Astleford’s total treatment to 43 radiation sessions, which is an amount that would put her spinal cord and oral cavity at risk of severe harm.

Despite knowing about that grave risk, Dr. Turrisi never told his patient about it, instead assuring her in writing that the additional 17 treatments could be completed “safely,” and somberly advising her that it would not be in her best interest to pursue “other options at this time.”

In the end, Astleford underwent an exceptionally invasive surgery that required removing part of her tongue and leaving her unable to swallow properly. What should have been a series of 35 radiation treatments that cured her cancer turned into 26 unnecessary doses of toxic radiation on the wrong side of her face, followed by a painful and debilitating surgery.

The pain and suffering Astleford endured was, to put it mildly, was almost unimaginable. And while she has filed suit against Delta Medix and Dr. Turrisi, a bill recently passed by the U.S. House and now making its way towards the Senate, would add insult to her injuries — and to countless other patients who have suffered medical malpractice — by placing a limit on how much they can recover, no matter how outrageous or invasive their mistreatment might have been.

Under H.R. 1215 the misleadingly titled “Protecting Access to Care Act” Astleford would only be able to collect a maximum of $250,000 for her pain and suffering. That’s because lawmakers behind the bill think those 26 unnecessary doses of radiation and the invasive surgery that would have been unnecessary had doctors administered the correct treatment to begin with are “noneconomic damages.” In other words, those 26 treatments didn’t actually “cost” Astleford anything, other than some discomfort that couldn’t possibly have caused more than $250,000 of troubles for her.

And while Astleford’s case is an alarming example of the impact this bill would have, it is hardly the only case in which damages caps prevent victims from receiving justice in the courts. In July, Public Justice highlighted the case of Jessica Simpkins, a young woman from Ohio who was raped twice by her church pastor. Despite a jury awarding Simpkins $3.6 million, she too was only able to collect $250,000, due to Ohio’s state damages cap law.

From medical malpractice to sexual assault, damages caps prevent victims of some of the vilest and most egregious crimes from ever receiving the justice they deserve. They also tie a jury’s hands, and make their verdicts nearly irrelevant, by allowing legislators instead of jurors to decide the maximum award allowed in these cases.

For Kathleen Astleford and Jessica Simpkins, these bills are the difference between justice delivered and justice denied. Though it passed the U.S. House by a slim margin of eight votes, senators should now ensure H.R. 1215 never becomes law and state lawmakers in places like Ohio, where Jessica Simpkins continues to speak out about the harms of that state’s damages cap law – should repeal these unconscionable laws and allow juries to award victims the damages and justice they deserve.

Paul Bland is executive director of Public Justice, a national public interest law firm that pursues high-impact lawsuits to combat social and economic injustice, protect the Earth’s sustainability and challenge predatory corporate conduct and government abuses. Find him on Twitter @FPBland.

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