Legislative Malpractice

Once again, Republicans in the House of Representatives are attempting to push through legislation to curb medical malpractice lawsuits, claiming that higher malpractice premiums deter doctors from practicing. Efforts to curtail damages rewarded to litigants have been numerous over the past couple of years, generally aiming to cap noneconomic and punitive damages or reduce the statute of limitations on claims. Though there’s no denying that doctors’ insurance premiums have been on the rise—often reaching seemingly excessive levels—legislation of this sort must be avoided. If Republicans succeed in winning the support of the House, it will be up to Democrats in the Senate to follow through on their promise to filibuster.

Even now, according to the Institute of Medical and National Academy of Sciences, avoidable medical errors account for the deaths of roughly 98,000 patients a year. It is imperative that people have confidence in their doctors. But passage of the proposed bill will diminish doctor accountability while increasing patient vulnerability. Because an arbitrary cap on damages cannot account for pain and suffering—as it does not correlate to any economic formula—allowing juries to decide an appropriate award is only fair. Capping the amount of damages payable to victims of malpractice undermines the importance of an unimpeded jury system, free from restraints that might hinder their ability to judiciously determine the level of damages on a case-by-case basis.

Moreover, according to an article by The Associated Press, the “Association of Trial Lawyers of America, allied to many Democrats, say insurers’ poor returns on investments are more responsible for premium increases. The group also argues that state-imposed caps on damages do not lead to lower premiums.” They allege that Republicans are not engaging in honest attempts to alleviate rising health care costs for doctors as well as patients. Republicans claim, meanwhile, that patients are forced to pay for superfluous tests indulged in by doctors afraid of malpractice lawsuits. The trial lawyers charge that the proposals are simply a bow to Republican donors residing in insurance lobbies. They’ve gone as far as accusing Sen. Bill Frist, R-Tenn., the majority leader and a heart surgeon, of “participating in the debate since his family founded the H.C.A. hospital chain and its subsidiary malpractice insurer, Health Care Indemnity.”

Surely, such charges coming from a trial lawyer lobby group should be taken with a grain of salt. But whether they come out of sheer special-interest politicking—which would come as no surprise—or simply misguided efforts to curb rising health care expenses, caps on malpractice lawsuits are unfair to the victims and undermine an effective jury system.