Medical Malpractice Caps...thoughts?

Great Debates
#1

CNN reported today theat the House passed the medical malpractice caps bill.

WASHINGTON (AP) – Responding to doctors’ complaints about soaring insurance costs, House Republicans pushed through legislation to limit jury awards in malpractice cases.

By a 229-196 vote, the House passed a bill Thursday that would cap noneconomic damages, such as compensation for loss of a limb or sight, at $250,000. The bill would not limit compensation for medical bills, funeral expenses and other economic damages.

It’s clear that this issue divides the right and left, while putting the screws (as per usual) to the middle…

What you you think about it, good or bad?

#2

Define “noneconomic” damages.
What is that?

#3

Tough one. Many people are getting away with millions for very little (i.e. the McD’s coffee spiller case - I know that it was overturned on appeal but there are more suits like it). OTOH you have people who are injured for life and their ability to make a living has either been ended or diminshed. Then you have the ‘nickel and dime’ lawsuits that are asking too little money to fight so they are often paid.

There should be a way for the legit case (where someone can’t make a living because of the malpractice) to be compensated so they can live out their life in a way that is comfortable. This could easily run into the millions of $'s. While limiting the other 2 types.

#4

Bad idea. Tort reform will not result in lower malpractice premiums. Contrary to popular opinion, insurance companies do not make their money from the difference between premiums collected and claims paid. They make their profits from investing premiums in the stock market until they are needed, and profit from the dividends and market growth. Consequently, when the market is good, insurance comapanies are profitable. But when the stock market turns downward, insurance companies take a bath. Every time there is a recession, insurance companies start howling for tort reform, claiming there is a huge problem with excessive jury awards, when in fact, malpractice payouts have remained nearly flat for the last 30 years.

In states where tort reform was enacted, there was no corresponding decrease in malpractice premiums.

Source: Premium Deceit, The Failure of Tort Reform to Cut Insurance Prices, published by Americans for Insurance Reform

Now, december will be along shortly to brand AIR as a front for trial lawyers, so I wiil save myself some time and post the groups that make up AIR. If december wishes to point out which ones represent trial lawyers and why this changes the fact that tort reform will not make insurance cheaper, I would like to hear it:

#5

Pain and suffering, as I understand it.

  • Posted by kanicbird *

The McDonald’s case had nothing to do with medical malpractice. BTW, the case DID have merit, because McDonalds intentionally kept their coffee dangerously hot, and had ignored Health Department citations for the same. (The coffee was hot enough to * liquify flesh.) *

The numbers of nickle-and-dime lawsuits are small when compared to legitimate cases. The doctors and insurance companies would like you to believe that people are suing just to make a fast buck, but it’s simply not as common as you might think. People die and are maimed in alarming numbers due to medical malpractice.

Personally, I disagree with a cap of $250,000. It seems paltry when compared to a lifetime of pain, or missing the use of a limb. I’m sure that there is compensation besides this ammount which takes care of medical bills and economic loss, but how does one put a price on the agony of losing the wrong leg, or from the death of a loved one due to clumsiness or negligence?

Most malpractice incidents were preventable, after all. Perhaps it’s the cynic in me that imagines that the fear of a multi-million dollar lawsuit kept doctors a bit more on their toes, whereas $250,000 isn’t very intimidating.

#6

This is a tough one. I believe that there needs to be tort reform, but I also believe that someone who loses a limb or their sight because of a bad doctor deserves more than 250 grand.

I think a better idea would be to limit noneconomic damages in instances where there is no serious lasting physical harm.

#7

For what it’s worth, my opinion is this…

There should be a sliding scale, applicable in four seperate levels.

Level One… small but permanent damage, i.e. scars, pain…
Awards from 0-250,000

Level Two… mild to moderate damage, i.e. limp, disability etc.
Awards from 250,000 to 500,000

Level Three…Moderate to severe damage, i.e. disability, loss of
one or more limbs or senses.
Awards from 500,000 to 750,000

Level Four… Severe Damage, Death, and willful negligence.
Awards from 700,000 to 1M.

The cap is 1M, not including medical expenses, legal fees, and logistical compensation (transportation etc.)

#8

Could someone explain to me why this is a Federal issue? I was under the impression that these types of lawsuits were litigated in state courts, so shouldn’t it rightly be a state legislature’s perrogative to set caps if it wants to?

#9

My question: since NOBODY can be “made whole” by any amount of money; how are pain and suffering award moderated by repair attempts?
Take somebody who has lost a foot-medicine can outfit them with an artificial foot, that with practice can fulfill perhaps 80% of the function of a matural foot. How do you calculate this person’s pain and suffering? Clearly, he/she is able to function at close to normal–and NO amount of money can replace your foot.
My solution: the govt. should set up a system like Workmen’s Compensation-where you are guaranteed to receive a fixed amount of monetary compensation, in return for waiving your right to sue. This would cost a whole lot less than filing lawsuits, and result in lower costs to doctors and patients.
but the largets lobby in washington (The Trial Lawyers of America) willNEVER allow any reform of this issue…so when you can’t find a doctor to help you (he was driven out of business) try calling you local ambulance-chaser lawyer-I’m sure he will be able to help you!

#10

Here is an idea. If the government is going to mandate how much juries can award in malpractice claims, why not also mandate how much insurance companies can charge as malpractice premiums? If it is OK for the government to insert itself between the jury and the claimant, I see no reason why it cannot come between the insurer and the insured. To be fair, there should be premium caps legislated in the same bill. After all, is that not the purpose of tort reform, to reduce malpractice premiums?

#11

kanicbird:

Are there? Then I’m sure you’ll have no trouble citing them.

BrightNShiny:

Cases may be brought in federal court if they are based on federal law or if the plaintiffs and defendants are residents of different states, called “diversity.” Medical malpractice is generally state common law (since it’s essentially professional negligence), so I’d guess that federal med mal cases would be there under diversity jurisdiction. How many cases those are, I couldn’t tell you off the top of my head.

ralph:

Cite?

#12

As to the federal issue, the bill’s text contains:

(quoting H.R.5 Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 2003 (Engrossed as Agreed to or Passed by House). You can search for it here.)

#13

I think the limits are an outrage.

The Legislatures of the various states allow for ‘non-economic’ damages, and also for juries to set the amount of the damage. Why don’t the republicans in Congress respect the people?

I also object to the language in the CNN article cited by the OP that the GOP was ‘responding to doctors’ complaints’. I think they’re mainly responding to compliants from their contributors in the insurance industry. The repeated attacks on tort law by the insurance companies has been discussed thoroughly in another thread: http://boards.straightdope.com/sdmb/showthread.php?s=&threadid=165611 . Data is shown there about the number of big awards as well… smaller than the demagogues would have you believe.

#14

I’m for a sliding scale as well, but higher overall than the one proposed somewhere above this post…

#15

Where’s the “state’s rights” wing of the Republican Party? They should be screaming bloody murder about this federal intrusion into tort law. :dubious:

#16

I’ll also make the same point I’ve made in the other “tort reform” threads. Shouldn’t we establish that there’s a problem before we try to “fix” it? What problem is this legislation intended to address?

Runaway insurance premiums? OK, then are those runaway premiums caused by:

a) A statistically significant increase in the size or number of jury verdicts? Haven’t seen any evidence of this. Put up or shut up.

b) Insurance companies jacking up premiums to make up for losses in the stock market? The more likely explanation. As Fear Itself noted, these cries for “tort reform” always seem to follow a downturn in the stock market. “Tort reform” will do nothing to solve this problem. It punishes victims of negligence for the investment failures of the insurance industry.

I put “tort reform” in quotes because I hate the term. It is an innocuous-sounding way of saying “limitation of victims’ rights.”

#17

spoke:

Not really. This particular instance limits victim’s rights, but all tort reform does not fall into the same category. For example, limits on the percentages that lawyers can take from an award. Or, similar to a public defender, people who have had the wrong leg removed or something could be provided a lawyer free of charge if they wanted. Of course, you can respond that lawyers wouldn’t do anything if they weren’t expecting an enormous payoff. The answer is, some wouldn’t, but they can be replaced.

#18

Here’s how I would have sorted this out: the purpose of this legislation is supposed to be the lowering of malpractice premiums so that doctors are not forced out of practice in high-risk specialties. Correct?

So, I would have put a provision in the bill stating that if average malpractice premiums do not decrease by a certain percentage within, say, a year, the legislation will be declared null and void.

Then you see if the malpractice firms are still in favor of it.

I think they may go down a bit, but my understanding is that huge payouts don’t have much effect on overall malpractice costs, as has been explained already. This is not likely to have the stated effect of making high-risk practice more affordable. I do think rules should be enacted, such as prohibitions on lawyers trolling for malpractice claims (“Do you feel your outcome could have been better if your cancer had been diagnosed earlier?”), but this probably isn’t the boon we’re looking for.

Dr. J

#19

First off a source: The US Department of Health and Human Services. http://aspe.hhs.gov/daltcp/reports/litrefm.htm spoke all the data you ask for is right there.
To Fear … true, they didn’t have a decrease, but they had much less of an increase -

The costs of premiums is driving many doctors out of the business, and for others it contributes directly to increased charges. And the cost of premiums is tied to the out of control outrageous awards.

But this is not the greatest means by which these awards increase the cost of healthcare.

Fear of lawsuits causes many doctors to practice poor medicine. They order tests, expensive tests, intrusive and sometimes risky tests, tests that sometimes have false positives and cause even more invasive tests to yet be performed, in order to be able to later prove that they did everything if later the patient has some bad outcome. They use antibiotics for little cause for the same reason. Best estimate of increased costs from this poor quality medicine? - between $23 and 42 billion dollars a year.

We physicians are cowered into settling suits without merit by the spectre of outrageous awards that exceed our policy limits. Let us say I am sued for a bad outcome. I know that I didn’t do anything wrong. But the other side is able to find some hired hand schmuck who is willing to whore himself and say that I did. We have experts galore who say that I didn’t. We’d likely win, maybe 19 to 1 that we will, but who knows what a jury will decide on any given day … and in Cook county if I lose it might get some sweepstakes award of 7 or 8 million … millions above my policy limits … am I going to risk my house and my kids’ education funds and bankruptcy? Or do I instruct the insurance company to settle within policy limits? What would you do?

And the possibility of such huge awards induces many an otherwise ethical person to go for a frivilous lawsuit in the hope of getting a million or so to just go away … even defending such suits is expensive. The average cost to defend against a suit is $25,000.

How out of control are these awards? The average jury award rose 76% from 1996 to 1999! (happy spoke?) Juries rightly believe that pain and suffering and life cannot be replaced by money, so they come as close to infinity as they can imagine. More that half of a typical award is for “non-economic” damage, above and beyond the medical costs, rehabilitation costs, lost current and future wages that no one proposes setting limits on.

Out of control awards make for bad medicine. They make for expensive medicine. And they are decreasing access to healthcare for many in many parts of the country.

#20

Sorry for the negligent coding. Sue me.