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The Law: Full Compensation for Pain and Suffering

The issue: How can someone be fully compensated for pain and suffering?

Jim Klotz, an Arnold, Mo., retiree, lost his right leg, part of his left foot, a kidney and much of his hearing as a result of a staph infection he got after having a pacemaker implanted in 2004.

Doctors in Missouri implanted Klotz’s pacemaker, hoping to stabilize him after he suffered a heart attack. But within weeks, he was stricken while vacationing in Arizona. Doctors there removed the pacemaker and found golf-ball-size masses of infection, later identified as methicillin-resistant Staphylococcus aureus (MRSA).

As the result of a suit against the cardiologist and the hospital, Klotz, 70, and his wife, Mary, were awarded $2.6 million by a 2008 trial jury. More than half of that award was to compensate so-called noneconomic damages, including pain and suffering. But the court later reduced the award to $1.9 million by cutting the noneconomic share of the settlement to $350,000, citing a Missouri statute that caps such damages.

The Klotzes appealed to the Missouri Supreme Court, where they were supported by an AARP friend of the court brief. The case drew national attention, and briefs were filed by two dozen business, labor and health industry groups before the state Supreme Court heard the case in January.

Similar caps on noneconomic awards are being challenged by AARP in Georgia and Kansas on the grounds that plaintiffs shouldn’t be deprived of full compensation for their injuries.

Lost earnings alone, the Klotzes’ lawyers argued, don’t adequately compensate older people, who are near the end of their careers or retired, and those with low incomes. And caps on noneconomic damages mean that no matter how egregious an injury the victim suffers, the cost to the responsible party for pain and suffering, loss of quality of life, emotional harm and other non-dollar items will never exceed a specified monetary amount.

“It’s terrible,” Klotz said in a phone interview. “Of course, getting my life back would mean more to me than any amount of money. [The suit is] a way to hold people responsible.”

Noneconomic damages are more difficult to measure than medical bills or lost wages. It is vital that this sort of personal, intimate harm is addressed, even if it is harder to measure, said Jay Sushelsky, AARP senior attorney.

“Ultimately, older people are devalued by these caps. They cannot be made whole, no matter how much pain and suffering they have endured,” added Kelly Bagby, AARP senior attorney. Further, said Mary Coffey, the attorney representing Klotz, “medicine, especially hospital medicine and procedures, is a huge business with lots of sloppiness, and it needs to be held accountable.”

What it means to you: The decision could affect those living in more than 20 states that limit noneconomic damages in malpractice suits.

Emily Sachar is a journalist and author based in Brooklyn, N.Y.

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