GOP presidential candidate Rick Santorum has said repeatedly while campaigning that he would work to cap payments to victims in medical malpractice cases, instituting a nationwide law similar to the one in effect in Ohio. However, when his own wife suffered at the hands of a chiropractor, he sought damages far in excess of his proposed cap. We will not here entertain the unfounded argument that medical malpractice contributes to rising healthcare costs. Instead, we will talk about the false reasoning that leads many people to wrongly support medical malpractice and other caps on damages in lawsuits.

When confronted about the lawsuit in which his wife sought $500,000–twice the $250,000 cap he proposed–Santorum prevaricated that his wife did not sue for “pain and suffering which is the area I think we should cap.” This is nominally true–the lawsuit did not seek a specific figure for pain and suffering. However, nearly all of the $350,000 jury award was for unspecified damages: the medical costs for the injury only totaled $18,000. And when Santorum himself testified in the case, he said the amount they were seeking was justified by the emotional and physical toll on his wife. What is “pain and suffering” if not a measure of the emotional and physical toll on a person after failed surgery?

How can an ostensibly rational person take such an outrageously hypocritical stance? It’s actually not that uncommon, and stems from a basic cognitive weakness in the human mind, what might be described as the “Self-Other” dichotomy. Essentially, when we look at our own actions, we judge them leniently because we understand the context of our actions, but when we look at the actions of others, we are apt to be more harsh because we have to extrapolate the circumstances.

This phenomenon is the rationale behind the old saying about not judging a person until you’ve walked a mile in their shoes, but it’s also the justification for the jury system. In a jury trial, an injured person is given the opportunity to explain his or her story to a group of citizens, who then decide the outcome of a case based on the circumstances of the case. Santorum’s situation is exactly why we need the jury system rather than arbitrary caps on damages–it is easy for a person who has no understanding of a victim’s situation to decide that some arbitrary number represents a reasonable limit for damages, but only a jury can actually decide the right amount based on a person’s actual circumstances.

If you are unhappy with the current cap on damages in Ohio, please contact your state legislators.

If you have been hurt by the negligence of another person and want a lawyer who will fight for the full compensation you deserve, please contact the Columbus personal injury lawyers at Robert W. Kerpsack, CO, LPA today for a free case evaluation.