Med-mal damage caps are unconstitutional, suit says

David Yates Feb. 5, 2008, 7:00am

Brian Sutton

Slavery, segregation and barring women from the vote are three major errors committed by America that were eventually recognized as unconstitutional. But one Texas lawyer says there is fourth, over-looked mistake continuing to violate the peoples' constitutional rights: medical-malpractice damage caps.

Representing James Zagone, plaintiff's attorney Brian Sutton filed a medical-malpractice suit against Christus St. Elizabeth Hospital and Beaumont Bone & Joint Institute, claiming his client was improperly diagnosed and treated well under the hospitals' care.

The plaintiff not only claims that the care-givers were negligent, but also claims there should no limit to the award he could receive.

According to the complaint, filed in the Jefferson County District Court on Jan. 30, Zagone "sought medical care" from the two hospitals on Nov. 16, 2005 for a fracture of the left proximal tibial plateau, which is an injury to the top of the shin bone involving knee cartilage.

Zagone is suing for exemplary damages and all court costs.

The suit is vague in describing the circumstances surrounding Zagone's allegedly-negligent treatment; only stating that since his initial surgery, Zagone has had multiple surgeries resulting from the "defendants' failure to perform surgery in a timely manner so as to avoid further injury."

However, the suit is very clear in stating that Texas' med-mal damage caps violate Zagone's U.S. Constitutional rights by not allowing a jury to award damages beyond the cap. In 2003, Texans passed a constitutional amendment and the legislature enacted a $750,000 cap on non-economic damages while death suits are capped at $1.6 million.

"The damage caps included in Chapter 74 of the Texas Civil Practice & Remedies Code are unconstitutional and violate the due process and equal protection provisions of the U.S. Constitution," the suit said.

"As written, these provisions further violate the due process, equal protection and open courts provisions of the Texas Constitution, which prohibit such public emoluments (that is, special laws for the protection of a specified class of tortfeasor)."

The case has been assigned to District Judge Donald Floyd.

Case No. E181-148

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