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Aid MDs and Patients Too

October 14, 2002

From patients with the wrong limb amputated to mothers stripped of their childbearing ability because of a botch in the delivery room, courts have delivered fair compensation to victims of bad medicine. In recent years, however, soaring pain-and-suffering jury awards have begun turning lawsuits into a lottery-style bonanza.

Trial lawyers focus on claims with the highest reward potential, a relative few, while ignoring other claims with merit, and they admit they concentrate on states that have no caps on pain-and-suffering damages. There is scant evidence that such lawsuits compel hospitals and doctors to adopt better standards. Meanwhile, it can take years to get a penny to any patient.

The nation's medical malpractice system is "punitive, expensive and inequitable for all, jeopardizing the availability of care," as Dr. Lisa Hollier, president of the Texas Assn. of Obstetricians and Gynecologists, neatly framed the problem in recent testimony to Congress.

Hollier's testimony helped prompt the House last month to pass HR 4600, a bill capping pain-and-suffering damage awards for medical negligence at $250,000, the same limit now imposed by California. The legislation, by Rep. Jim Greenwood (R-Penn.), would help lower doctors' medical malpractice premiums, which are soaring in states without caps. The size of median jury awards for medical malpractice has risen nationally -- from $474,536 in 1996 to $1 million in 2000.

Trial lawyers say the $250,000 cap, imposed in California in 1975 and never raised to account for inflation, provides far too little compensation in 2002, however. They're right. It's also very hard to find a lawyer to take a $250,000 case. To provide the same level of compensation in today's dollars, the cap would have to be about $800,000.

But regardless of the figure that Congress finally sets, some cap on these so-called punitive damages (compensation not for direct economic loss but for impaired quality of life) makes sense. The current lottery-style system hurts everyone, forcing physicians in some states to close their practices. One measure of the chaos: In California, insurance companies offer general surgeons malpractice coverage for $21,000 to $43,000 a year, whereas in parts of Florida annual premiums are as high as $159,000.

Chances are slim that the Senate will agree to the medical malpractice bill as it's now worded, for Democrats rightly argue that if Congress is going to weaken patients' ability to penalize doctors and health plans, then it must give them an alternate means of appeal and improve detection of medical errors.

Californians have enjoyed such recourse since 1999, with a law guaranteeing patients the right to an independent medical review when they believe they have been harmed by their health plan's treatment -- or denial of treatment.

Federal legislators, rather than giving up on reform, should at least begin drafting compromise legislation. Rather than focusing narrowly on lowering the pain-and-suffering damages cap, Congress should look at ways to seamlessly combine such caps with reviews of treatment and care decisions by an independent board of medical experts and better quality controls. The right policy would give relief to patients as well as doctors.

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