Imagine two twins, Jane and John. Jane is stopped at a right light when an inattentive driver collided with her car from behind. The crash was so bad, Jane needs to use a wheelchair for the rest of her life. In a tragic coincidence, at the same time John is undergoing relatively routine spine surgery. After surgery he is recovering in the hospital when he starts to feel like he is losing feeling in his legs. No one monitors his evolving and worrisome symptoms, and when he tells a nurse, the nurse tells him she will tell the doctor, but no doctor comes. By the time someone comes to evaluate him, he’s lost all function in his legs. John needs to use a wheelchair for the rest of her life. Should John be treated differently because he’s the victim of medical malpractice?
Jane brings a claim against the negligent driver, and John brings a claim against the negligent hospital. Although Jane and John may have to present different evidence as to wrongdoing (Was the driver negligent? Was the hospital negligent?), one would think that each of them would be able to recover the same measure of damages. I mean, they both suffered the exact same injuries, right? It shouldn’t matter whether the responsible defendant was a car driver, or a grocery store (for leaving a dangerous spill for someone to slip on), or a health care provider, should it?
Well, for years and years, the Washington legislature (heavily lobbied by the Washington State Medical Association) has passed laws that make it harder for victims of medical malpractice to recover for the same injuries that a victim of another type of negligence has suffered.
And over the years, many of these laws have been found unconstitutional (because they treat the same class of people differently for no good reason).
However, not all of them have. And even now, new bills are being introduced that continue to prejudice victims of medical malpractice. One such bill currently up for debate involves prejudgment interest.
Prejudgment interest is the interest on the money a victim is awarded by a jury when he or she successfully proves their case at trial. The interest begins accruing from the date of the occurrence causing the injury (car crash, or immediately after surgery when there is a delay in diagnosing John’s paralysis).
Prejudgment interest is fair in all instances because lawsuits can take years to resolve, and it is unfair that the defendant – the person responsible for the injury – should benefit from the money during the time between the negligence and the jury’s decision.
Without prejudgment interest, defendants have every incentive to delay trial as long as possible. After all, they get to keep their money as long as possible (and conversely, keep it from the person they injured).
We can expect – just like last year – that the medical establishment will lobby for an exclusion for medical malpractice victims. Time will tell whether, during this current legislative session, a prejudgment interest bill will pass, and if so whether there will be an exception carved out for victims of wrongful medical care. Hopefully, though, all our citizens – including both Jane AND John – will not be treated differently in this regard.
