How the System Failed One Sufferer

By Rita Healy/Denver

Jim McDonough went into the hospital in 1997 to have a calcified growth, which the doctor said could be cancerous, removed from his neck. Two days later he awoke to find himself paralyzed from the chest down. Still in the intensive-care unit, he felt strangled by a noose of pain and needed three excruciating gasps of air to cry for help. "I was crushed," says McDonough, 69, a former weapons-plant inspector from Littleton, Colo. He once loved to fish and dreamed of restoring his ideal car: a 1965 Chrysler. But he soon realized that he could do neither and came to believe that his surgery had been unnecessary. A jury agreed. It found his neurosurgeon guilty of malpractice and in 2001 awarded McDonough $5.8 million. He has yet to see a dollar.

McDonough is a victim again, this time of the move to cap jury awards. Colorado is one of the few states that limit jury awards of both economic damages (say, for lost income) and noneconomic ones (for pain and suffering). Judge Warren Martin, now retired, cut McDonough's award to $1.33 million, concluding that although his injuries merited an exception to the $1 million cap, the jury had gone too far. (Colorado's caps limit economic damages to $750,000 and pain-and-suffering awards to $250,000. The former can be increased if a plaintiff shows future economic loss that exceeds that level.) McDonough appealed to the Colorado Supreme Court but was denied. He later tried to settle, but the defense argued that he had waited too long, and another judge ordered a new trial to determine damages. It will begin in August--a fresh chapter in McDonough's nightmare.

Proponents of damage caps say they simplify malpractice cases and weed out frivolous claims. But they can also entangle victims of heartbreaking tragedy like McDonough. No longer able to work, he spends his days doing crossword puzzles and preparing again for court. That was not the intention of the first jury, whose award was based not on mere sympathy but on calculations of McDonough's direct financial burden. According to foreman Joanne Kramer, in arriving at the $5.8 million in damages, the jury considered everything from home health-care aides to a van, a wheelchair, the loss of his home and the loss of income for his wife, who spends hours every day caring for him. Jurors also discussed whether McDonough's award would add to rising malpractice premiums but decided he should not be penalized for that. "We still had a responsibility to Mr. McDonough, who was a victim," says Kramer. "What's the point of having a jury if the judge can basically do what he wants?"

McDonough isn't giving up the fight. In February he wheeled himself into a state legislative hearing on damage caps. The Colorado Supreme Court ruled that "physical impairment and disfigurement" are exempt from limits on jury awards, but this spring the state's lawmakers limited the effect of the court's decision. "The doctor who performed this unnecessary operation has left the state and is continuing with his life elsewhere," McDonough testified. That neurosurgeon, Richard Branan, 59, declined to comment about McDonough. Branan practices in Los Angeles and faces two other trials this year in Colorado. His attorney in one case, in which the patient died, says, "We have a very defensible case." His attorney in the other trial, also a spinal-surgery case, says Branan "did not cause any injuries to the patient."

Despite Colorado's unusually strict damage cap, the state's largest insurer raised premiums 14% this year, the biggest jump in 15 years. So far at least, the cap law is failing to deliver the relief that it promised to doctors even as it blocks relief to acknowledged victims like Jim McDonough. --By Rita Healy/Denver