President Obama’s speech at the annual conference of the American Medical Association in Chicago was a highly anticipated event, not only for casual followers of the President’s political agenda, but also for Chicago medical malpractice lawyers. Health care reform is front and center, once again, and so is the issue of “tort reform.”
Medical malpractice is considered a “tort” in which the injury is caused by negligence, or a failure to provide the appropriate standard of medical care to the victim. The person who caused the injury may be a doctor, surgeon, nurse, hospital or other licensed healthcare professional.
One of the most controversial tort reform issues involves imposing caps on non-economic (or non-liquidated) damages, such as pain and suffering, in medical malpractice awards. Proponents for caps on non-economic damages argue that jury awards and settlements are too high, causing medical malpractice insurance premiums to rise, thereby increasing the cost of healthcare and forcing doctors to flee to more protective jurisdictions.
However, the evidence does not support these tort reformists. Several independent studies have concluded that medical insurance premiums have not significantly declined in states that have imposed caps on non-economic damages, and are not predicted to significantly decline if Illinois enacts similar caps.
More importantly, an arbitrary cap on damages in a medical malpractice benefits the insurance companies at the expense of those most seriously injured and most in need of help. For example, in Missouri, non-economic medical malpractice awards are capped at $350,000. Therefore, if a newborn child suffers a catastrophic permanent injury such as hypoxia induced cerebral palsy as a consequence of medical malpractice, she may only recover $350,000, despite requiring full-time care for the rest of her live, and never being able to live a normal life.
Further, there is no evidence to support the argument that caps on non-economic damages will impact the filing of “junk” lawsuits. Medical malpractice lawsuits in Illinois and nationwide are extremely expensive to prosecute — filing fees, expert witness fees (often $500-$1,000/hour), exhibits, testimony, etc. The more complicated the medical malpractice case, the more expert witnesses may be required.
In an environment without caps on non-economic damages, Chicago personal injury lawyers must be extremely selective in the medical malpractice cases they handle — because the attorney usually pays all the expenses and attorney’s fees if the plaintiff loses her case. In jurisdictions with caps on non-economic damages, personal injury lawyers will be even less inclined to invest in meritorious medical malpractice cases because of the significant expenses and a capped potential recovery.
If Chicago medical malpractice lawyers are less inclined to file worthwhile claims, then people who have suffered will continue to suffer. The only people who win with caps on medical malpractice awards are the insurance companies.
Thankfully, President Obama told the American Medical Association (and the American public) that medical malpractice caps are “unfair to people who’ve been wrongfully harmed.” He stated that other health care reform options should be pursued.
President Obama outlined other options in an article he wrote in May 2005 with Senator Hilary Rodham Clinton that was published in the New England Journal of Medicine. The article, “Making Patient Safety the Centerpiece of Medical Liability Reform,” argues for improved patient safety through open communication and confidential disclosure of medical errors over caps on medical malpractice awards.
A year earlier, in May of 2004, Libby Perl, the Century Foundation Program Officer, wrote an article entitled “The Medical Malpractice Controversy” that drew a similar conclusion. She goes on to explain “how limits on awards for “pain and suffering” have the greatest adverse affect on the poor, underemployed, and children, because they would get smaller awards for economic damages such as lost wages.” The people stand to lose if caps are imposed on medical malpractice awards.
The health care reform debate is complex in general, and the debate on caps for medical malpractice awards only adds to the complexity and potential confusion.
What is clear is that caps on medical malpractice awards are not the answer. Millions will be denied their legal rights to seek appropriate compensation and damages when negligence of doctors, hospital staff and other healthcare professionals caused unnecessary pain and suffering. Passen & Powell’s Chicago personal injury lawyers will continue to support the rights of the people to access our courtrooms and to seek the justice they deserve.