Unresolved: Capping jury awards for medical malpractice

Great Debates
1

Republicans were unable to overcome a Democratic filibuster in the Senate last week to vote on a bill limiting pain-and-suffering damages to $250,000.

http://www.azstarnet.com/star/thu/30710NCONGRESS-MALPRACT.html (reprint of NYT article.)

Today’s Boston Globe features an opponent of this measure, the father of a toddler who died at Boston’s world-renowned Children’s Hospital due to what seems to be a series of miscommunications, senior surgeon not answering his pager, etc. The man has channelled his grief into political action:

http://www.boston.com:80/dailyglobe2/195/metro/Grieving_father_targets_medical_malpractice+.shtml

As is common I’m torn on an issue that the Senate itself seems divided on, that’s normal for a centrist. Emotional arguments aside, on one hand I can see how jury awards contribute to the problem of malpractice insurance, which has reached potential crisis proportion. (anecdotal: a popular G.P. that I used to go to has packed up and moved to Canada with no regrets.) On the other hand, last year after two short hospitalizations for one child we reached the $20,000 dollar mark in medical bills, mostly paid by insurance. If there is a cost-of-living crisis in this profession, one certainly can’t tell from their bills…I’m not sure how the average Joe is supposed to see it otherwise. “If we didn’t have to pay such high malpractice premiums…” then, what?

The Globe: “And in in a battle increasingly portrayed as a clash between vast and well-funded special-interest groups - doctors vs. lawyers…”

I’m sure there are more than special interests at stake here, and would like to be better informed of the arguments. Thanks in advance.

2

I am an expert in this area, having done medical malpractice actuarial and underwriting. First, let me emphasize what Tee said – only the “non-economic damages” would be limited. The total award would be unlimited. If medical negligence caused a patient to lose $5 million of potential earnings and resulted in $5 million of extra medical costs, he could recover $10,250,000.

From a cost POV this is a moderate reform. IIRC it is projected to reduce claim costs by something like 25%.

I disagree with “on the other hand”. Both the fleeing doctor and the high bills are bad effects of high malpractice costs. The net income of a typical doctor is no longer particularly high. Plaintiffs’ attorneys make a lot more money than doctors.

Plailntiffs’ attorneys receive 1/3 of all malpractice awards and in addition they charge expenses to their clients. Defence attorneys are paid hefty hourly fees. In total, lawyers collect about half of total malpractice claims. I view this as a battle between the lawyers and the rest of us. The lawyers are winning. They give so much money to legislators that they can get their way. Over many decades, judges have been expanding malpractice law. So, if Congress and the state legislatures do nothing, malpractice costs will continue to increase.

However, a number of state legislatures are also seeking to impose some sort of malpractice reform – efforts that are being opposed by the lawyers.

As I see it, there are several key issues:[ol][]Fairness to the injured patient and his/her family[]AffordabilityDoes the malpractice suit process improve medical care?[/ol]Point #3 is key, but it’s seldom considered. Americans are paying the malpractice costs via our medical bills and insurance premiums. What are we getting for our money? Would the same money spent in other ways do more to improve medical care for Americans?

3

To agree with december here:

Start off with defining the goals.

We want fewer mistakes that result in harm.

We want individuals who have been harmed to be fairly compensated.

We want high quality medicine practiced and we want it available affordably.

How do we get these these things and how does tort reform play into it?

Item one: fewer mistakes that result in harm.

Doctors make mistake. I know. I am one and I have made some. Any doctor who says that they haven’t is untruthful or doesn’t practice medicine. They generally haven’t caused harm because we have enough checks and rechecks that they get caught. Most mistakes are not because of “bad doc”, they are human doc and a system that was inadequate to allow for it. Improvement comes from docs owning up to the mistakes as part of an ongoing analysis to improve upon the system where ever it is possible. Our current malpractice system discourages such activity. Eliminating jackpot awards would help encourage it.

Our current system encourages defensive medicine which is usually not good medicine. More tests are not just costly, they can put patients at risk. Unneeded medicines put patients at risk as well.

Item two: fair compensation.

The reform that just died would allow full compensation for all concievable economic damages. It recognized that no amount of money would ever compensate for pain and suffering and places a reasonable cap on attempts to do so.

Item three: affordability.

There is no escaping that states with caps have had less malpractice premium increase than states without. I have made mistakes but my one malpractice case, which I settled, was not one of them. Why did I settle then? Because the small risk of losing and having a jackpot award exceeding my policy limits and putting my house, kids college, etc, all at risk, was to much to gamble on.

Malpractice rates nbot only are driving up fees and costs they are decreasing the availability of some specialty care in some regions.

That’s my take tee.

4

So y’all are saying remove the punishment phase of the judgement?

5

Do you mean punitive damages? I think the $250,000 cap would apply to the sum of Pan and Suffering plus Punitive Damages, since it’s decribed as a “cap on non-economic damages.”

6

december…Do you have any children? A wife? If you lost one to a greivious mistake…would 250k be ok with you? Is that the price you put on your loved one?

7

Again echoing. More like saying that there need to be sentencing guidelines that are reasonable (if one wants to pursue the analogy of bad doc whose negligence is criminal).

8

I just want to be sure I understand this. Suppose that an infant died as a result of some egregious negligence on the part of a doctor/hospital. That doctor would not be on the hook for more than $250K, since there’s no reasonable way to determine lost earnings or any other economic hardship. Am I getting this right?

If so, this is a horrible idea.

9

I don’t put a monetary price on my loved ones. Thirty years ago, my father died due to a cancer surgery that led to a fatal heart attack. It seemed to me and my family that the surgeon took too little caution over his known heart problems. We didn’t explore suing. I don’t know if we would have had a case or not. This was in Florida, a state where the law favors litigants.

I was devasted by my father’s death. No amount of money would have replaced him. Getting an award wouldn’t even have punished the doctor, because it would have been paid by his insurance company.

Frankly, I’m uncomfortable with the whole area of wrongful death awards. The person who deserves them is dead. It’s not like paying an award to a person who actually suffered an injury. You can argue that the doctor should be punished on account of his malpractice, but it’s harder to argue that I should somehow profit from my father’s death. I was grown at the time, and he was retired, so there wasn’t any element of my losing financial support.

Taking it a step farther, if we really want to punish the negligent doctor, we should prohibit him from buying insurance. As it is, the tort liability system pretends to make the negligent party pay for the damage he caused.

10

december…So you think wrongful death awards are wrong. The awards are for the death. They are an attempt to soothe those who lost a loved one.

Question…Why do you think juries award such large amounts?

11

What if it wasn’t a child but instead an elderly parent? Would $1,000,000 be ok?

Marc

12

I have no idea. But capping a judgement is not the way to go. Research who is behind the cap hunt. You will find it’s the insurance companies.

13

I’m not sure wrongful death awards are wrong. But, there are morally different from awards that go to the person who was actually harmed IMHO.

The jury awards are often large because negligent medicine can do large damage. In the example of my father, the surgery may have resulted in death instead of life. There was a Dr. Nork in California many years ago who did spinal cord surgery for which he was unqualified. He left a number of patients with very serious disabilities for the rest of their lives.

14

december…come down on the side of the little guy for once. This is all for the insurance companies.

15

Ok, how about another hypothetical: A 30-year old engineer goes in for a routine procedure and due to gross negligence on the part of the doctor, is left a paraplegic for the rest of his life.

$250k seems a little low to me to compensate somebody for never being able to walk or run again. Think of all the simple little pleasures in life that require walking or running. Think of the tremendous inconvenience of getting around in a wheelchair. And what if this person also loses his sexual functions? It seems to me that a few million would be more appropriate.

16

I’d say that there should always be an option for unlimited punitive damage. Otherwise you could have doctors who could behave like the Firestone tire company except on people.

I wouldn’t mind seeing anything beyond some dollar amount go to govermental fund though. That would keep the cap in place to prevent people from simply trying to cash in and still allow people to sue in order to punish a doctor.

17

Reeder, where do you think insurance companies get their money? They don’t print it. Their money comes from their customers, who get it from the little guys.

The lawyers involved in malpractice make a great deal of money. Some of the law firms have more income than entire insurance companies. The occassional little guy wins a big award. The little guys pay all the costs that support the prosperity of the lawyers and they pay for the occassional big award and for the overhead of the system, which is substantial.

In short, you’ve got it exactly backwards. The malpractice legal system has all of us little guys supporting a few wealthy lawyers.

18

Reeder, you are wrong. Research who is against the cap legislation. It is the lawyers. This is all to line their pockets.

Sound stupid? Yes, it is. Argue the merits, not who supports or opposes it.

Who benefits from jackpot verdicts though? The typical “little guy”? No. The lawyers consistently do. And a number of people who suffered an adverse outcome win a lottery prize, which still doesn’t replace their loved one. And the rest of the little guys suffer more. Increased medical costs both directly through increased fees to the small degree that docs are able to pass it on, and indirectly through the huge costs of defensive medicine. Less availabilty of docs in high risk specialities in a wide variety of regions as they just can’t afford to practice. Insurance companies just pass the cost on.

Bob, there are ways to estimate economic loss due to a child’s death or impairment that courts use, although I do not how they do it.

19

You buy it hook line and sinker don’t you december. It’s the lawyers that twist the juries arms, threaten their children, to make those juries return those verdicts.

Shame on me…I thought the juries made those decisions themselves.

20

:confused: I didn’t make any such claim. Where did this come from?