Medical Malpractice: Limiting Damages vs. Addressing Errors

April 14, 2011 (Press-News.org) President Obama recently acknowledged he is willing to contemplate reforms to the medical malpractice structure and look at options other than the repeal of his health care bill to bring down health care costs. He has placed medical malpractice reforms on the table in order to "rein in frivolous lawsuits," says the LA Times. Previously, House Republicans proposed legislation with a $250,000 cap on pain and suffering damages caused by "any health care goods or services or any medical product."

Damage Caps vs. Addressing Medical Errors

Many patients' rights advocates were angered over the President's words. Joanne Doroshow, Executive Director of the Center for Justice & Democracy in New York, says the center asked the White House to refrain from using the phrase "frivolous lawsuits" when referring to suits by injured patients -- many of whom have suffered devastating injuries.

At this time, 35 states have some form of caps on medical malpractice awards. The proposal from House Republicans is modeled after laws in California and Texas, but the federal reform would go even further by limiting damage awards for injuries caused by medical devices and drugs.

Proponents say that malpractice lawsuits and the threat of litigation have contributed to driving up the cost of health care. Chief Executive of the California Medical Association, Dustin Corcoran, says the association believes caps on malpractice awards have kept malpractice insurance rates affordable, allowing physicians to maintain their practices.

However, damage caps continue to face significant opposition. In response to concerns over frivolous lawsuits, opponents to the caps point out that state courts have adopted rules of procedure that prohibit frivolous or non-meritorious lawsuits from proceeding. The only cases that should proceed to trial and verdict are meritorious cases. Furthermore, some argue that the caps are unconstitutional because:
- They deny access to a jury trial by usurping one of the fact-finding responsibilities of the jury
- They constitute an impingement by the legislature on judicial powers, namely the ability of the judge to order a new trial in the event excessive damages are awarded
- The caps impermissibly create two classes of victims: those that have been injured by medical error and are limited in damages and those that have been injured by other negligence and are not limited in damages

According to the Institute of Medicine, the cost of preventable medical mistakes each year ranges from $17 billion to $29 billion. Meanwhile, Ross Eisenbrey, Director of the Race, Ethnicity, and Economy Program for the Economic Policy Institute, advises that medical liability costs represent "less than one percent of health care spending." In fact, other experts have argued that large medical malpractice awards provide a necessary deterrent for doctors, nurses, and hospital administrators to prevent medical errors and negligence.

In the United States alone, hospital-acquired sepsis and pneumonia may kill 48,000 people or more every year, says a recent study published in the Archives of Internal Medicine; and Institute of Medicine released a report in 1999 showing that medical mistakes may account for as many as 98,000 deaths every year. Consumer advocates say damage caps fail to address the problem of medical errors. Rather, med mal caps provide a free pass for the medical professionals involved in the most egregious cases of medical errors.

Administrative Compensation and Health Courts

The LA Times reports that presidential insiders say the President still opposes damage caps on awards for victims of medical malpractice; instead, health courts or arbitration systems are an interesting alternative, they say. Some say the risk to injured patients is that these administrative programs may replace the court system with tribunals overseen by medical societies and insurance companies. Unlike workers' compensation programs, patients in health courts would still bear the burden of demonstrating that they were harmed by avoidable medical error. Additionally, there are concerns that taxpayers and patients would shoulder the cost of these programs -- programs that are aimed at rationing compensation and reducing liability costs but not at improving patient safety.

As the debates continue, anyone who has been injured by medical error should contact a medical malpractice attorney as soon as possible. An attorney can help victims demand compensation for injuries, including medical expenses, lost wages, and pain and suffering.

Article provided by Rosenblum, Ronan, Kessler & Sarachan
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