Nebraska family urges Senate not to let
malpractice cap hurt others
BY MATT KELLEY
WORLD-HERALD BUREAU
WASHINGTON - A jury of Nebraskans decided that Lisa and Michael Gourley's son, Colin, suffered
brain damage at birth because of his doctor's negligence.
The 12 jurors awarded the family from Valley $5.6 million in damages, the amount they determined
would be needed for a lifetime of care for Colin, who cannot walk, dress himself or eat on his own.
But this year, after nearly five years in court, the Gourleys lost most of that award. The Nebraska
Supreme Court ruled that the Gourleys could receive no more than $1.25 million, the amount at
which Nebraska law caps malpractice damages.
On Tuesday, the Gourleys were in Washington urging Congress not to impose similar caps throughout the
nation.
"He's never going to lead a normal life," Lisa Gourley said at a press conference on Capitol
Hill, her son looking on.
The Senate this week is debating legislation that would cap medical malpractice awards. Proponents,
including Sen. Chuck Hagel, R-Neb., say the caps are needed to bring down malpractice insurance
costs and help doctors stay in practice.
The Senate version does differ significantly from the Nebraska law in that it caps only punitive
damages and damages for pain and suffering. There is no limit on damages for actual economic loss.
Nebraska's law caps all damages at $1.25 million.
"It is a balanced approach," Hagel said of the Senate bill.
Nonetheless, the caps are unlikely to win passage in the Senate, where Democrats and a handful of
Republicans have the votes to block a final vote. The issue is likely to become a topic for the 2004
presidential campaign.
Not surprisingly, behind-the-scenes proponents of the caps include a powerful lobby of doctors and
insurance companies. Trial lawyers are fighting the caps from the other side of the aisle.
Hagel and other proponents of the caps argue that rural doctors are being driven out of business by
huge malpractice insurance premiums. The problem is especially acute in higher-risk areas of
medicine, such as obstetrics and gynecology.
To make the point, Hagel's staff points to Dr. Michael Woods, who practices in Iowa and Nebraska.
Woods, 44, has delivered about 4,000 babies.
This year, Woods said, his malpractice insurance premium ballooned from around $30,000 to $90,000.
Soon, he said, he may have to shutter his practice.
On the other side of the debate are the Gourleys.
Colin Gourley and his identical twin, Connor, are now 9 years old. Colin suffered brain damage
before birth due to a condition that the Gourleys contend their doctor could have prevented.
Connor Gourley was born without complications. But his brother requires physical therapy five times a
week and around-the-clock care.
Lisa Gourley quit her job to care for Colin. The family moved from their house to help pay for
care. With the limit on their damage award, they say, Medicaid now pays for much of Colin's care.
Lisa Gourley said the caps hurt victims without bringing down malpractice costs.
"All the caps do," she said, "is take the responsibility off the people who caused the problem and put it on the taxpayer."