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CAP ON DAMAGES DEBATED
QUESTIONS ABOUT MEDICAL MALPRACTICE FOCUS ON PAIN AND SUFFERING


Date: Sunday, July 13, 2003
Section: VIRGINIA
Page: B1
Byline: JEN McCAFFERY SPECIAL TO THE ROANOKE TIMES

Summary: The theory behind a settlement in a Southwest Virginia case runs counter to the political tide.

Chris Henley can't go to school, because he gets winded just walking around the halls.

The Wythe County boy beat bone cancer in 1996 at age 11. Then a doctor's failure during a period of nine days to diagnose an easily treatable form of pneumonia nearly cost Henley his life, Roanoke attorney John Lichtenstein said. Henley's lungs were ravaged, and he spent the next few years in and out of hospitals.

Henley's family, who now lives near Charlottesville, eventually brought the lawsuit alleging that his permanent lung damage was the result of medical malpractice.

With medical malpractice, once the medical bills are paid, the question remains: How much money does a person deserve for the rest of the life he or she will lead - whatever length that might be?

That issue is at the center of a national debate over whether to cap damages that a jury can award for pain and suffering at $250,000.

Republican leaders in the Senate introduced the legislation last week that seeks to cap such damages. They withdrew the bill because it did not have enough support, but President Bush strongly supports the legislation and it is predicted to become an issue in the 2004 presidential election.

Supporters of the cap point to doctors who have shut down their practices because they can no longer pay the costs of medical-liability insurance, leaving some communities without adequate medical care.

A survey released this year by the Kaiser Family Foundation reported that 72 percent of respondents said the amount of jury awards for pain and suffering should be limited. An additional 25 percent opposed the cap. The results came from a Gallup poll of 1,006 adults across the country.

Michael Fleming, president-elect of the American Academy of Family Physicians, supports the cap.

"I'm certainly all in favor of when there are damages, paying the economic cost of the damage," Fleming said. That cost could include future medical bills and compensation for work the person can no longer do as a result of the injury. "But I just don't understand the basis behind paying a reward for having something happen."

But opponents of the bill say it deprives people such as Chris Henley from receiving fair compensation for their suffering. Because the Saltville clinic where Henley was examined was federally funded, the U.S. government was the defendant in the case, not the doctor who treated Henley. The case was settled last year with the federal government agreeing to pay almost $1 million in damages.

Henley's case illustrates that the federal government agreed that Henley, now 17, deserved payment not only for his medical bills, but also for his suffering. That belief runs counter to the political tide that wants to cap compensation for pain and suffering and for punitive damages in medical malpractice cases.

"No money can replace the quality of life Chris has missed out on," said Henley's mother, Kimberly.

The federal government neither confirms nor denies any liability in the Henley case, Assistant U.S. Attorney Julie Dudley said. Had the case gone to trial, the government would have presented its own expert witnesses in the case, she added.

But rather than go to trial on the case, the government agreed last year to pay Henley $975,000, just $25,000 short of the maximum amount Henley could have received under federal and state law. Virginia's cap on damages for all costs - including medical bills and pain and suffering - was $1 million in 1996, the year the negligence allegedly occurred.

Because of Chris Henley's anticipated future medical needs, the settlement amount was not paid directly to the family. Instead, a Special Needs Trust was set up in Henley's name. An independent trustee administers the money, according to federal law.

Awards for pain and suffering are considered non-economic costs under the law. These costs are different from economic costs, such as medical bills. The proposed legislation does not seek to limit awards on economic costs, but does seek to limit awards for pain and suffering, punitive damages and attorneys' fees in some cases. State governments would also have the option to enact higher limits under the proposed legislation, The Associated Press reported.

Had the proposed legislation been in effect when Henley's case was pending, and had the case gone to trial, the amount he could have recovered from a jury for pain and suffering would have been capped at $250,000. Instead, he received more than $550,000 for his pain and suffering.

"Chris Henley at age 11 lost his health, lost his future," Lichtenstein said. "What's the price tag on that?" Had the $250,000 cap been in place, the defendants in the case would not have had to pay as much for Henley's pain and suffering, Lichtenstein said. Henley's medical nightmare began when he was diagnosed with Ewing's sarcoma at age 10.

Henley was often hospitalized during his treatment. In April 1996, when doctors said his red blood cell count was too low to attend a professional wrestling match at the Roanoke Civic Center, Henley made the front page of The Roanoke Times when he got a visit at Carilion Roanoke Community Hospital from professional wrestler Hacksaw Jim Duggan.

The Henleys were relieved later in 1996 when doctors told the family that Henley had licked the cancer. They told the family Henley didn't need to return to Roanoke for everyday medical treatment, Kimberly Henley said.

According to the family's version of events, a few months later, Henley started to gasp for air and couldn't catch his breath. His mother carried Henley into Saltville Medical Center, where Dr. Anthony Iacovelli examined him.

Iacovelli attributed Henley's symptoms to the psychological impact of his previous cancer treatment. The family called the clinic about Henley's condition and returned twice more to see Iacovelli at the clinic, but the diagnosis never changed.

Iacovelli never checked Henley's oxygen levels, even though he noted in the medical record that Henley was gasping for air. Nor did he order any blood tests.

Nine days after the family had first gone to the clinic, Henley was literally blue. When Henley was finally tested, his oxygen levels were life-threateningly low. Iacovelli then diagnosed Henley with a form of pneumonia.

But it was too late. Henley's lungs had already been severely damaged. He was rushed to Carilion Roanoke Community Hospital and was in and out and hospitals for the next several years. He lived on ventilators and feeding tubes. He was placed on the double-lung transplant list at Pittsburgh Children's Hospital.

The Henleys managed their son's care as best they could. They had three other children and Henley's father, Jessie, had to stop working because of a disability. For a time, Kimberly Henley supported the family on the just more than two dollars an hour plus tips she made as a waitress at Pizza Hut.

"We just stuck together and stayed at the hospital with Chris the whole time," Kimberly Henley said.

Now, some days are good and some are bad for Henley. He is small and frail for his age. His family has moved north of Charlottesville to be closer to medical care at the University of Virginia Medical Center.

The family has been able to move into a house that suits Henley's medical needs, using money from the trust. Most of his future medical bills will be covered by Medicaid, Lichtenstein said.

Henley's health has improved enough that he has been placed on inactive status on the lung transplant list. But the damage has been done, and it is irreparable.

The discussion is not about Henley getting better.

"They talk in terms of stability," said Kimberly Henley. "The question is: Is he stable, or in trouble?"

MALPRACTICE CAPS

Here's how the $975,000 settlement in the Henley case broke down - and how the proposed cap on "pain and suffering" awards in malpractice cases could have changed it:

WHAT HENLEY RECEIVED

$553,748.96-Went into a Special Needs Trust to compensate Henley for pain and suffering. That money will not go toward Henley's future medical care and he will stay be covered by Medicaid.

$243,750.00-One quarter of the settlement amount went to attorneys' fees, as mandated by federal law.

AFFECTED BY PROPOSED FEDERAL LAW?

Yes, under the proposed bill, Henley would only have been able to recover a maximum of $250,000 for his pain and suffering. No, under the proposed law, some attorneys' fees could be affected. But in the Henley case, the attorneys' fees were already set under federal law.

$106,665.11-Went to repay Medicaid for Henley's previous medical bills, NO

$43,006.62-Went to legal costs for expert witness testimony, depositions, etc., NO.

$19,124.40-Reimbursement to the Henleys for cost of transportation, lodging,etc. when taking Chris Henley to doctors and the hospital, etc. NO

$8,704.91-The remainder went to trust and settlement lawyers and other costs. NO

SOURCES: Court records, Henley family and lawyers, Associated Press.

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