This is an archived article that was published on sltrib.com in 2004, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
Romping in the sun with his brother, Athan seems like any other 7-year-old. Yet he is not.
Athan has asked his grandmother why his left hand doesn't work so well. He has been in special education, speech therapy and counseling. He doesn't connect consequences to his actions, and his father this month plans to send him to residential treatment.
Athan's brain was damaged at birth when Tooele doctor Gregory Drezga fractured the baby's skull with forceps. According to Athan's attorneys, Drezga yanked so hard he nearly pulled Athan's mother off the table, and when the instrument gave way, the doctor fell to the floor. Athan had bleeding in his brain and had to be delivered by emergency Caesarean section.
Kurt Montgomery, 25, recalls his feelings as the injured baby was flown from Tooele Valley Regional Medical Center to Primary Children's Medical Center in Salt Lake City.
"I was very angry, and it ran the gamut from being shocked to being heartbroken," he says. "I didn't know what would happen."
At a trial in 2000, a judge found Drezga negligent. Jurors awarded Athan $1.25 million for lost quality of life, an amount the trial judge cut down to the state's then-$250,000 cap.
Montgomery, a journeyman carpenter, says caps are simply unfair. "I hate to have to hesitate to do things for [Athan] because of money," he said.
Premium disparity: Athan's case bears little resemblance to the infamous tales of multimillion-dollar awards for hot coffee spills and secondhand smoke that, although rare, continue to stoke the bitter debate over tort reform. Such stories have led more than 20 states to limit jury damages.
The logic behind pain-and-suffering caps is simple: Caps limit the payouts by insurers, which in turn enable the companies to reduce what doctors pay for malpractice insurance. But recent studies have shown only the first part of the theory holds true.
Take the 2003 study by Weiss Ratings Inc., which monitors the insurance industry's financial health.
Weiss analyzed medical malpractice premiums and payouts from 1991 to 2002 and found that not only did caps fail to reduce malpractice premiums, they had the opposite effect. Among the study's surprises:
l Insurers in states with caps raised their premiums at a significantly faster pace than those in states without caps - 48 percent compared with 36 percent.
l Despite the imposition of caps, insurers in nearly nine of 10 states continued to raise rates, while insurers in states without caps were actually more likely to hold or cut their premiums.
l In states with caps, insurers are more likely to charge premiums exceeding the national median than those in states without caps.
As for Utah, the state experienced the second-steepest increase in both median payout (475 percent) and median premium increase (82 percent) among cap states. The closest comparison among noncap states was Kentucky, which saw the median premium rise 89 percent despite a paltry 1.5 percent increase in median payout.
Now consider California, the first state to impose a liability limit and the one conservatives tout as a model for the federal cap. For more than a decade after the California law took effect, doctors' premiums continued to rise faster, overall, than the inflation rate. And it wasn't until 1988, when voters passed a corresponding cap on insurance rates, that they leveled off. In fact, the steepest hike in premiums occurred the year after the Supreme Court ruled that the caps are constitutional.
"These counterintuitive findings can lead to only one conclusion," wrote the authors of the Weiss study. "There are other, far more important factors driving the rise in med mal premiums than caps or med mal payouts" - factors that have more to do with the ups and downs of the economy and the cyclical nature of the insurance industry.
Even the nation's largest medical malpractice insurer, GE Medical Protective, admitted in a Texas regulatory filing that "noneconomic damages are a small percentage of total losses paid," and that capping them would save the company only 1 percent.
Mark Fotheringham, speaking on behalf of Utah's largest malpractice insurer, the Utah Medical Insurers Association, acknowledges there is no single reason for the exponential rise in malpractice premiums. And he suggests damage caps may be encouraging juries to give the maximum.
"But there is enough anecdotal evidence and common sense that says if you have a cap, you can keep premiums lower than they otherwise would be," Fotheringham says.
"Greatly diminished": This was the rationale of the Utah Legislature when, in 1986, it enacted a $250,000 cap on "noneconomic" damages. (Lawmakers have since bumped the limit to $400,000 and tied future increases to inflation.) And it was good enough for the high court when it ruled the cap to be constitutional earlier this month.
Under Utah's constitution, an individual may sue "for an injury done to him in his person, property or reputation."
This right, while not absolute, has caused the court to take a strict view of any laws that seek to restrict it, such as government immunity and deadlines for filing lawsuits. The court has said such laws must be struck down unless there is another way to collect damages, or when the restriction is a reasonable attempt to eliminate a "clear social or economic evil."
In Athan's case, the "evil" is the supposed ripple effect of large jury awards: costly malpractice premiums, the shortage of doctors, and increases in health-care costs.
Writing for the majority, Associate Chief Justice Michael Wilkins said it is not the court's place to sort out conflicting studies about whether caps actually reduce malpractice premiums. Still, he acknowledged the cap harms those who have suffered the most.
"This cap severely injures young Athan, who will live a life greatly diminished by Dr. Drezga's negligence," Wilkins wrote. "But that is a policy choice made by the legislative branch, and we cannot say that it is unconstitutional."
James McConkie, an attorney representing the Montgomerys, says the ruling will make it harder to challenge any restriction on constitutional rights, not just the ability to collect damages awarded by a jury.
Chief Justice Christine Durham made the same point in the dissent. The majority's opinion ignores the facts, takes away the right of a jury to decide damages and abandons the court's role of protecting core values in the state's constitution, Durham wrote.
While courts generally defer to legislators' law-making role, Durham wrote, "we do not grant immunity to constitutional review on the basis of legislative assertions of 'fact' that have no demonstrated basis in reality."
Long wait: For Athan and his family, reality is all there is.
Drezga's insurance company claims his malpractice policy is not valid, and it has not paid any of the verdict. A separate $100,000 settlement paid by the Tooele hospital was reduced by attorney fees and medical bills.
"These folks have been waiting now for six years to get enough money to provide for the extensive needs of this child," says McConkie. "And the longer you have to wait to get the kind of intervention he needs, the harder it is to solve his problems."
At trial, an expert said if Athan continues to develop at his current rate, his intellectual abilities will be borderline-to-low average. With support, the expert said, Athan could learn to live independently. Without it, he would likely end up in a group home or institution.
For now, Athan has other plans. He is energetic, outgoing and he wants to work in construction and run equipment. He grins sheepishly and rolls his eyes when hearing comments about his unique name.
But that isn't all that makes him different, and he knows it.