Recently I was reading the New York Times article, “Bush’s
Next Target: Malpractice Lawyers" by Steve Lohr. (27
February 2005)
and it got me thinking about the plan to cap pain and suffering awards to
$250,000. A few months ago I was waiting
in O’Hare when I met a family practice doctor from one of the Northern plain
states and we had a lively discussion about malpractice liability reform. An hour and half later, I was
not satisfied that this was the answer. His response was simple, “You don’t like it, then come up with a better
plan.” Well, I don’t have a plan and the nagging doubt remains - there must be a
better way!
I agree that the current system does not work. The now famous 1999 IoM report states that 44,000 – 98,000 people die annually
in hospitals due to medical error, and approximately 82% of preventable errors
are human errors. These errors cost many
millions every year. Medical malpractice
insurance is extremely high and is rising at alarming rates. There are many frivolous lawsuits initiated
every year (most of which do not get to court, many of which are settled
because it costs less to settle than to justifiably disprove malpractice). But there is also malpractice which dramatically alters the life of patients and their families.
But when we federally mandate a limit on what a jury can award
a plaintiff, we enter potentially disastrous territory. Currently, liability reform and insurance
rates are dealt with on a state level. Why is it better, or even acceptable, to make liability
reform a federal issue? Doesn’t limiting what a jury can award take
away an essential element of a trial by jury? Tort reform has taken place in many states, yet insurance rates continue
to dramatically rise. What makes it the
case that limiting jury awards will lower the rates of insurance? History shows us that many states’ liability
reforms have had little to no impact on malpractice insurance rates.
Perhaps we could begin to solve this problem where it
begins. Currently, insurance companies
are unregulated (and heavily invested in politics). Perhaps the government should investigate the
merits of regulating health and malpractice insurance. Many malpractice claims have little
foundation in real medical malpractice. Why
not have states seriously look at rules regulating malpractice claims? Why not have a stricter, nationwide, mandatory
reporting system for physician error? A temporary bandaid doesn't begin to solve the problem, but it may cause more problems. (Congressman
Ron Paul (Texas) wrote a
statement in 2002 addressing many of these points – it’s a quick read and worth a look).
I don’t have the answers, but talking about it is always a
good place to start.
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