President Bush and Senate Majority Leader Bill Frist want the federal government to impose a limit of $250,000 on what victims of medical malpractice can be awarded for pain and suffering.
They have looked to places such as California, where such a cap has been in place for 30 years, and they have concluded that its doctors and hospitals don't face the same medical malpractice insurance crisis said to exist in states without caps.
But if they were to look a bit further afield -- to Europe -- they might have second thoughts about their proposal.
Imagine a young woman the age of the president's daughters who suffers from blindness or quadriplegia as a result of a doctor's malpractice. If her case went to trial in the U.S. (in a state with no cap), jurors would be told that in addition to compensation for medical costs, attendant care and lost income, they should add on a further sum for her anticipated lifetime of pain and suffering.
Predicting precisely how much the jury would award for this pain and suffering is impossible because there are no guidelines. Nor are jurors told how much other juries have awarded for similar injuries. The trial judge simply instructs the jurors to provide what they believe is the proper amount, guided by the closing arguments made by the lawyers on both sides, by evidence of what a "day in the life" of this victim is like, and by what they've seen of the victim's condition in the courtroom.
Often the plaintiff's lawyer will emphasize lost pleasures and the negatives associated with incapacity, disfigurement, constant pain and the like. Some lawyers try to have jurors consider how much money they would require in order to accept being in the condition of the victim. Studies suggest that the amounts ultimately awarded often turn on the talents of the lawyers, the composition of the jury and such inappropriate factors as the appearance, gender and race of the victim.
Given all the imponderables, it is not surprising that jury verdicts for pain and suffering vary dramatically. On average, studies suggest, an American jury today is likely to award between $3 million and $4 million for pain and suffering to a victim who has become blind or a quadriplegic.
