The human face of the medical malpractice debate.

I sat down to write this column shortly after 17-year-old transplant patient Jesica Santillan died at Duke University Hospital, a victim of horrendous medical malpractice. Her death came as the debate over H.R. 5--which caps noneconomic damages at $250,000 in malpractice and other cases--heated up in the 108th Congress.

As trial lawyers, we understand that caps benefit the bottom line of big insurance companies at the expense of injured patients and their families. But reaching the press and public with this truth has been an uphill battle in the face of the insurance industry's relentless propaganda about "frivolous" lawsuits.

The Santillan family's tragic story illustrates perfectly how caps punish those who have suffered devastating, life-altering losses. Widespread media coverage of Jesica's death has helped many people understand this cruel reality for the first time. The teenager's story put a human face on a complex issue, revealing the truth in a way that resonated in Washington, D.C., and around the country.

Certainly, the facts are dramatic and compelling. Reporters flocked to tell the heartbreaking story of an angelic girl whose family defied all odds to obtain life-saving medical treatment for her.

Before long, the entire nation knew how the Santillans' dream of a heart-lung transplant had been realized with the help of a strange-turned-benefactor, only to be shattered by a shockingly simple oversight. No one bothered to check before the operation whether Jesica's blood type matched that of the organ donor, a failure that killed her.

As of this writing, the Santillans had not decided whether to file suit over their daughter's death. But if they choose to do so, North Carolina law provides for their case to be heard by a citizen jury with the power to determine fair compensation and to hold those who killed Jesica accountable for their actions. Jesica's life and her family's loss have value, even though she was a minor whose survivors are not entitled to economic damages in the form of lost income.

Federal medical malpractice "reform" would destroy that system. H.R.5 passed the House March 13, and if a companion Senate bill also passes, the law of North Carolina and the facts of Jesica's life and death would be virtually irrelevant in a lawsuit by her family. Instead, her life would be measured by a callous formula that limits noneconomic damages to $250,000--no matter how great the family's loss, or how horrific the conduct that caused Jesica's death, or even how many wrongdoers were responsible.

Realizing the public relations problem created by Jesica's death, some cap proponents in Washington were quick to suggest that cases like hers might warrant an exception--on the theory that what happened to Jesica is somehow unusual.

We know that's not true--that is, we know that Jesica's story is all too common. Preventable errors by medical providers in hospitals kill nearly 100,000 people in America every year. That's equivalent to three jumbo jet crashes every two days.

Countless more innocent people suffer life-altering medical injuries that leave them maimed, blind, or paralyzed. A federal one-size-fits-all cap on noneconomic damages would punish them and do nothing to reduce malpractice insurance premiums for doctors.

ATLA has worked hard to educate the public on the real problem, which is the insurance industry's near-total control over America's health care system. Even before Jesica's death, there was substantial evidence that our message had begun to take hold.

In recent weeks, several newspapers have editorialized against caps as a solution to the health care crisis. Business Week commented in its March 3 issue that jury awards are not the cause of rising medical malpractice premiums. Cap proponents, the magazine said, "simply aren't coming up with the facts to make their case."

These are positive developments, but unfortunately federal malpractice "reform" is only the first of our challenges in the 108th Congress. At the behest of corporate special interests, bills that target the rights of asbestos victims and class action plaintiffs also have been added to the agenda. It is no exaggeration to say that our entire jury system is at risk.

If there is a lesson for trial lawyers in Jesica's death, perhaps it is to remind us of the power of simple human stories--our clients' stories--to reveal the truth about complex issues. We should bear this in mind as we stand up for our clients' rights not only in court, but also in Congress, in state legislatures, and in the public debate over the fate of the civil justice system.

In the end, people trust juries in their own communities more than they trust politicians in Washington. I am confident that when they know the facts, Americans will say no to corporate special interests that seek to destroy the legal rights of individuals and families for financial gain. As trial lawyers, our job is to speak the truth until that day comes.

Your friend,

Mary Alexander