Miss­ing the mark

Caps ham­string vic­tims, fail to slow ris­ing costs of care, mal­prac­tice in­sur­ance

Modern Healthcare - - Opinions Commentary - David Barry Jr.

Caps on com­pen­sa­tion for noneco­nomic in­juries suf­fered by vic­tims of neg­li­gent med­i­cal care are, at best, a pro­posed so­lu­tion to ris­ing health­care costs that is based on ig­no­rance of our jus­tice sys­tem. At worst, caps are a mean­spir­ited at­tempt by the med­i­cal es­tab­lish­ment and its in­sur­ers to gain eco­nomic ad­van­tage at the ex­pense of those least able to bear that bur­den.

Un­der pro­pos­als re­cently con­sid­ered by Congress, a 4-year-old girl, ren­dered blind by plainly neg­li­gent med­i­cal care, would be given a max­i­mum of $250,000, be­fore at­tor­ney’s fees and ex­penses, to com­pen­sate her for more than 70 years of blind­ness. The same com­pen­sa­tion would be given to the fam­ily of a 36-year-old stay-at-home mom killed by sub­stan­dard care, leav­ing be­hind her hus­band and four chil­dren un­der the age of 12.

The Illi­nois Supreme Court de­ter­mined in cases in 1976 and 1997 that lim­it­ing re­cov­ery in med­i­cal mal­prac­tice cases by im­pos­ing caps on noneco­nomic dam­ages is “ar­bi­trary” and de­nies those most se­ri­ously in­jured equal pro­tec­tion and due process of law un­der both the U.S. and Illi­nois con­sti­tu­tions, by plac­ing “the en­tire bur­den … on one class of in­jured plain­tiffs.” The state Supreme Court also de­ter­mined that caps “in­vade the power of the ju­di­ciary to limit ex­ces­sive awards of dam­ages.”

There are com­pelling rea­sons, be­yond the le­gal­i­ties, to re­ject caps:

For the rule of law to work, all cit­i­zens must be ac­count­able through a process that is ac­ces­si­ble to all.

It is long a tra­di­tion of our democ­racy to do jus­tice with ju­ries. The Sev­enth Amend­ment is not an af­ter­thought.

Noneco­nomic dam­ages, un­der the law, are in­tended to com­pen­sate vic­tims for years of phys­i­cal pain, men­tal suf­fer­ing and the loss of the qual­ity of life they would have had ab­sent the mal­prac­tice. It is the only form of com­pen­sa­tion that does not just pass through the vic­tim on its way to some­one else, as is the case with dam­ages for fu­ture med­i­cal costs or lost wages. Con­se­quently, noneco­nomic dam­ages are based on so­ci­ety’s com­pas­sion for in­no­cent vic­tims and the be­lief that those who caused them in­jury owe it to them to make their lives as bear­able as pos­si­ble.

Pro­po­nents ar­gue that caps will re­duce “friv­o­lous” law­suits and avoid “jack­pot” jus­tice. Th­ese are very catchy terms, but they are hor­ri­bly mis­lead­ing.

In Illi­nois, as in most states, med­i­cal neg­li­gence ac­tions can­not even be filed un­less the case has been re­viewed and cer­ti­fied by a physi­cian in the same school of medicine as the de­fen­dant. Most cases re­quire mul­ti­ple spe­cial­ists to es­tab­lish li­a­bil­ity and prox­i­mate cause, so a plain­tiff’s costs of­ten ex­ceed $200,000 just to get a case to the point where it can be tried or set­tled. No right-think­ing lawyer is go­ing to in­vest that kind of money and time un­less a re­view­ing physi­cian can show that the case has merit. In our of­fice, we ac­cept for re­view about one of ev­ery 25 cases that come to us. Of those, we ac­tu­ally file law­suits in only one of ev­ery eight. “Friv­o­lous” mal­prac­tice cases have vir­tu­ally dis­ap­peared in the past 25 years.

Large jury ver­dicts get the pub­lic­ity, but the av­er­age award in mal­prac­tice cases has been flat for 15 years. Fil­ings have de­creased dra­mat­i­cally be­cause lawyers have be­come in­creas­ingly se­lec­tive of the cases they will ac­cept. Large ver­dicts are usu­ally the re­sult of very high fu­ture­care costs for the vic­tim, a prod­uct of the me­te­oric rise in the cost of health­care. Those ver­dicts that are not sup­ported by the ev­i­dence are re­duced by the courts, but that process gen­er­ates lit­tle or no pub­lic­ity.

The rapidly in­creas­ing cost of care also means that caps on noneco­nomic dam­ages do not have any sig­nif­i­cant ef­fect on in­sur­ance pre­mi­ums, be­cause those are based on all po­ten­tial dam­ages, not just noneco­nomic dam­ages.

Mul­ti­ple stud­ies pub­lished in the past two years have in­di­cated that less than 10% of the vic­tims of mal­prac­tice ever con­tact a lawyer. Yet, the med­i­cal pro­fes­sion claims that many physi­cians or­der un­nec­es­sary tests to pro­tect against mal­prac­tice claims. If that is true, those prac­ti­tion­ers ought to be ashamed. The law only im­poses li­a­bil­ity on doc­tors who fail to ad­here to the stan­dard of care. If a test is not med­i­cally in­di­cated, there will be no li­a­bil­ity for fail­ure to or­der it. Or­der­ing tests that are man­dated by the stan­dard of care is not de­fen­sive medicine.

Pro­po­nents of caps ar­gue that by lim­it­ing ac­count­abil­ity and ac­cess to the courts, they can save on over­all health­care costs and physi­cians’ mal­prac­tice pre­mi­ums. This is not un­like the present-day ten­sion be­tween fight­ing ter­ror­ism and pre­serv­ing civil lib­er­ties. As Ben­jamin Franklin said, “Those who would give up es­sen­tial lib­erty, to pur­chase a lit­tle tem­po­rary safety, de­serve nei­ther lib­erty nor safety.”

Fi­nally, de facto caps on dam­ages against physi­cians have ex­isted for many years. The cap is their limit of in­sur­ance cov­er­age. I have prac­ticed law in Illi­nois for 28 years and know of only one case where a plain­tiff ac­tu­ally at­tempted to pur­sue the per­sonal as­sets of a physi­cian. There are anec­do­tal sto­ries of physi­cians’ as­sets be­ing pur­sued in other ju­ris­dic­tions, but they are in­cred­i­bly rare and al­ways in­volve ex­traor­di­nary cir­cum­stances.

The bot­tom line is that caps don’t pro­vide any so­lu­tions and only im­pose ad­di­tional hard­ship on the in­jured.

David Barry Jr. is a part­ner at Cor­boy & Demetrio in


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