Should a cap be put on pain & suffering and punitive damages in medical malpractice suits?
Overview/BackgroundHealth-care costs are exploding out of control. Virtually everyone has noticed increases in premiums, co-pays, deductibles, etc. The number of uninsured Americans continues to grow. Much of the health care cost problems can be contributed to medical malpractice lawsuits. Astronomical verdicts have led to massive increases in the cost to doctors of medical malpractice insurance. Doctors must pay up to $200,000 per year in insurance, depending on their specialty. Doctors are forced to pass these costs to patients, which explains in large part the cost increases. A number of doctors have even gone on strike around the country to protest the rising malpractice insurance costs.
When a patient sues a doctor for malpractice, he or she may recover monetary damages for lost wages, medical bills, and pain & suffering. In some cases, punitive damages can also be collected. Several politicians have proposed putting a cap of $250,000 on the pain/suffering and punitive portions of these damages (while keeping the medical bill & lost wages recovery unlimited). However, since the majority of Congresspeople are themselves lawyers by trade, in addition to the fact that at least one major political party receives a large portion of their campaign contributions from lawyers in the American Bar Association, the proposal is far from passing.
- It would help fight out-of-control health care costs. There is no doubt that health care costs are spinning out of control. Health care has become the third highest monthly expense for the average family after housing and food. This wasn't near the problem even a decade ago. The nation didn't suddenly get much sicker. Other items must explain the exploding cost. One is the obvious impact of medical malpractice verdicts. Juries are given way too much leeway since pain & suffering is difficult to measure. Is a broken leg worth $100,000? Are two broken legs worth $200,000? Is lung cancer worth $300,000? The mood and the biases of the jury can lead to large verdicts, with unreasonable amounts going for such imprecise things as "mental anguish". By capping pain & suffering expenses, we can reduce the number of frivolous lawsuits and assign a reasonable limit to pain and suffering amounts.
- Heart-wrenching cases lead to excessively unfair verdicts. The main reason for massive verdicts is the sympathy juries feel for the plaintiffs. It's difficult to not feel sympathy when you see someone wasting away with cancer, wheeled in in a body cast, or horribly disfigured in their appearance. The purpose of tort lawsuits is to compensate the victim, not to punish the defendant. Unfortunately, the pain juries feel for the plaintiff lead them to reward excessively unfair verdicts. Juries see a poor, suffering victim beside a rich doctor & insurance company, and they think, it won't hurt anyone to give a big verdict to this person. The heart-wrenching pain will often cause juries to reward money even when the doctor isn't the least bit at fault. Medicine is such an imprecise science that there are literally thousands of cases where one doctor will think one thing and another doctor will think just the opposite. It's difficult for many people to grasp, but when someone dies or suffers tremendously, there often isn't anything today's medicine can do to help.
- There's still no limit on damages for lost wages and medical bills. The proposed $250,000 limit applies only to pain & suffering costs. Lost wages and medical cost compensation is still unlimited. Thus, if a mistake forces another operation cost $300,000 and puts you out of work for a year, you can still recover that $300,000 and a full year's salary (as well as up to $250,000 for pain & suffering).
- Doctors are starting to retire or walk out on the job in response to the exploding malpractice insurance costs. There have been some well-publicized doctor strikes to protest malpractice insurance costs that amount to as much as $200,000 per year, depending on specialty. We already are facing a major shortage of medical professionals. Unless we control the malpractice insurance costs, things will get worse. More doctors could become rebellious and go on walk outs. Many doctors have already chose retirement rather than pay the high costs. Then there are the less noticeable effects. Doctors are often unable to open small clinics since it's hard for a new businessperson to absorb that high of overhead right away. Instead, they are forced to work in large impersonal hospitals.
- Doctors who want to provide free or discounted services are handcuffed by the insurance costs. Many doctors are compassionate people who got into the profession to help people, not to make money. They want to provide free services to the poor or uninsured. Unfortunately, they may not be able to absorb the malpractice insurance needed so they can do the work. All it takes is one lawsuit to wipe out everything they own, so the insurance is a must. We constantly hear reports of the millions of uninsured around the country. In a society of so many brilliant doctors who want to help, this shouldn't be a problem.
- Good doctors are penalized for a few mistakes by others. It's unfair that a doctor can pay millions of dollars in malpractice insurance throughout his or her career without making one single significant mistake. The intense training and certification requirements in this country ensures that we have very few bad doctors. Unfortunately, a few mistakes by the bad doctors make everyone pay disproportional amounts.
- Doctors are forced to practice defensive medicine; i.e. they must focus on not getting sued rather than curing the patient. One lawsuit can in effect end a doctor's career. The already high cost of insurance grows tremendously with any lawsuits. Thus, doctors must take any and all steps to avoid missing anything. Their focus becomes on not getting sued rather than being the most efficient & effective doctors they can be. For example, a patient comes in presenting headache symptoms. After a thorough examination, the doctor is 99.9 percent convinced these are stress headaches. The threat of being wrong & getting sued may nonetheless prompt him to order a CAT scan to test for a brain tumor. The result is an increase in cost and waste of staff resources.
- Each malpractice case is different; thus, a judge and jury should decide the proper damage amounts. Putting a monetary cap on all lawsuits creates the impression that all of them are the same. The reason we have a judge and jury make decisions is that each lawsuit presents a different set of facts. Should the pain of brain cancer create the same damage limit as a broken bone? Certain doctor mistakes can lead to pain that lasts a lifetime, whereas other mistakes lead to little or no pain. It is arrogant and condescending to say that judges and juries won't be intelligent enough to decide the proper figure.
- The cap would leave very little negotiating room for settlements. In reality, very few malpractice lawsuits are decided by a jury. Most are settled out of court for far less than what could be won in a jury verdict. Plaintiffs will settle for far less to avoid a long drawn-out trial & appeals process and to avoid the possibility of losing & getting nothing. A cap on the verdict means a cap on the settlement amounts. Thus, victims may be forced to take far less for their pain & suffering.
- Pressure must be maintained on hospitals so that strong safety procedures are put in place and doctors are careful. The threat of an expensive lawsuit keeps doctors sharp and on guard. Extra pressure is applied to do a thorough, responsible job. Hospitals put in specific procedures to make sure they won't be sued. These additional procedures and pressure mechanisms benefit patients. They greatly decrease the possibility of a mistake being made.
- Several patients may be discouraged from filing, which may free a poorly performing doctor from responsibility. Filing a lawsuit is expensive and time-consuming. A lawyer won't take a contingency fee based lawsuit if there isn't a substantial verdict possible. Any kind of damage cap will deter many patients from filing. Thus, a doctor who has legitimately made a destructive mistake gets away with it. Any mistake may be indicative of a poor doctor who has made many mistakes. Who knows what will happen the next time he or she makes a mistake?
Related LinksThe Solution to the Health Care Crisis
Insurance Information Institute
Americans for Insurance Reform
Essential Information Organization
The Solution to Medical Malpractice Costs: The Frivolous Lawsuit Statute
Written by: Joe Messerli
Page Last Updated: 11/19/2011