Op-Ed: Don’t Add Insult to Injury

The medical malpractice debate has heated up again, and as usual generalizations and over-simplifications are being used to sidetrack us from meaningful solutions to the real problems that threaten health care for Americans.

Federal legislation is being debated that would place a cap on non-economic damages for those patients who have been proven in court that they have been injured by medical malpractice.

While doctors’ malpractice insurance premiums have risen sharply in the last few years, they seem finally to be leveling off, and may even be beginning to drop. Unfortunately, rhetoric tends to trump analysis in this field, allowing a common misunderstanding to develop that a dramatic rise in lawsuit claims and payouts causes the cost of malpractice insurance to increase.  There is simply no evidence that insurance costs go up or go down based on the number of lawsuits or the amounts of damages.  The insurance industry is cyclical.  It always has been.  This is just another turn of the cycle.

Capping damages has already proven ineffective. An ABA analysis found that 22 of the states determined by proponents of capping malpractice awards to be either “in crisis” or “showing problem signs” already had caps in place at the time the American Medical Association made its report.  A June 2003 report by Weiss Ratings, Inc., found that “Caps on non-economic damages have failed to prevent sharp increases in medical malpractice insurance premiums, even though insurers have enjoyed a slowdown in their payouts.”

Nevertheless, we continually hear that capping the damages that can be awarded to victims of medical malpractice would solve a cornucopia of our nation’s ills.  We can expand access to health care, speed up the creation of jobs, reduce Medicare premiums, etc.— all by capping non-economic damages.

No.  What caps can do, however, is hurt the very people who have been most seriously injured by a negligent medical professional — like the woman diagnosed with breast cancer who had a double mastectomy before finding out she had been negligently misdiagnosed, or the man who was paralyzed during a botched operation for a brain cyst he didn’t have.

Recently, Tom Baker, professor of law and director of the Insurance Law Center at the University of Connecticut, released a book, The Medical Malpractice Myth, reporting on studies of hospital patients that found only a small fraction of injured patients filed a claim, and that patients who bring weak claims usually do so only to find out for sure whether the hospital has been negligent.

Without a doubt, doctors in some practice areas in recent years have faced much higher premiums.  This is a serious problem that is intrinsically entwined with the insurance cycle.  The American Bar Association urges legal and medical professionals to cooperate in seeking a solution to medical liability insurance problems, which are not addressed by capping pain and suffering awards and otherwise limiting awards to injured patients.

Let’s get serious about the challenges facing our nation’s health care system and stop looking for silver bullets and convenient scapegoats.