For Plaintiff's attorneys, medical malpractice damages caps are a very real concern. But are there other ways around the caps?
Take the case of the botched circumcision in California.
Los Angeles Superior Court Judge Rex Heeseman has agreed to approve a $4.6 million settlement reached between former Los Angeleno Melanie Hall and Miltex Inc., the medical device company she feels is responsible for her son's botched circumcision.
The lawsuit alleged that a defective circumcision clamp led her son's doctor to remove 85% of the tip of his penis as opposed to just the foreskin.
He requires surgical and psychiatric care perhaps for the rest of his life.
While a botched circumcision would ordinarily be filed as a medical malpractice suit, City News Service reports that attorney Browne Greene decided to file a defective product lawsuit against Miltex.
The suit alleged that the clamp was defectively designed, simultaneously giving little protection to and blocking the doctor's view of the head of the penis.
Greene's decision to go after Miltex is what has led to such a large settlement despite medical malpractice caps in California.
While California law allows for the recovery of economic damages, it limits non-economic damages, such as pain and suffering, to $250,000.
These rules don't apply to product defect cases, allowing plaintiffs to recover significantly more in subjective damages.
Strategically, if possible, filing a product design defect suit is also a better option than a medical malpractice suit, as they are easier to prove.
While a plaintiff must prove that a doctor was negligent in a malpractice suit, California, like many states, imposes strict liability for design defects unless the benefits of the design outweigh its risks.
It's likely that Miltex realized that the botched circumcision could have been prevented with an easy design tweak, leading any potential jury to award significantly higher than $4.6 million.