Should There Be Caps on Pain and Suffering in Malpractice Lawsuits?

The odds of being sued approach 99%1 for physicians that practice in the five most-sued specialties, which are neurosurgery, thoracic cardiovascular surgery, general surgery, orthopaedic surgery, and plastic surgery. More than half of the states place limits for medical liability awards. But most of the award payments come from “pain and suffering” with no legal limits to the amount that can be awarded by a jury.

To be fair, we have looked at capitation arguments on both sides of this issue.

Those in favor of capitation of pain and suffering for malpractice awards point out that capitation would fight out of control health care costs. Excessively unfair verdicts would not be determined by overly emotional cases. At this point there is still no limit on damages for lost wages and medical bills which affects the cost of medical liability insurance. With caps, patients may be discouraged from filing a frivolous complaint because it is expensive and time consuming. If a substantial verdict is not possible, many lawyers will be more selective when taking cases on a contingency basis. Thus, any type of damage cap may reduce a percentage of frivolous filings. Actually, many cases are settled out of court at a lower settlement to avoid cost and time of both parties. Plaintiffs want to avoid a long trial and the possibility of losing. Capitation would also help lower these settlement amounts.

Some doctors are leaving their practices, retiring early, or eliminating higher risk procedures due to rising malpractice insurance costs. Physicians are caught between stagnant or lower reimbursements from insurers and rapidly rising practice overhead expenses. Mistakes by others are penalizing good doctors. Perhaps the greatest concern of many doctors is that they have to practice defensive medicine. Their focus is on not making mistakes rather than providing the quality of care they learned in their training. Some doctors order unnecessary additional diagnostic tests to verify the accuracy of their diagnosis. Some doctors feel the need to work in large impersonal hospitals rather than be part of a small, responsive private practice because of the increasing overhead costs.

Those in opposition to capping pain and suffering argue that every case is different and that a jury should determine damage amounts. They state that a cap would leave very little negotiating room for settlements. They say not capping encourages hospitals to oversee strong safety procedures so that doctors exercise the greatest possible level of care. A study at Harvard University’s Kennedy School of Government found that only 2.4 percent2 of health expenditures on average arise from medical liability including legal costs, verdicts, settlements and the use of “defensive” medical testing. Damage caps affect only large cases with merit; these caps do nothing to limit so-called “frivolous” medical malpractice lawsuits. Those in opposition to caps declare that there are adequate filters to eliminate claims that have no merit: our judges. Also, they state that personal injury lawyers need to choose cases with merit before incurring large expenses they may have to eat.

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