You have heard the claims: “Malpractice suits are out of control”. “Good doctors are getting sued all the time”. And most of all this one “We should have damage caps to prevent frivolous lawsuits”. This consistent, relentless drumbeat of commercials and lobbyists is all paid for by doctors’ groups and their insurance companies. The goal is not to stop “frivolous lawsuits”–the system does a great job of that already.
No, the goal is to prevent doctors and their medical malpractice insurance companies from paying for the damage that they cause people who have valid, excellent cases. And anyone who gives it a little thought can quickly see why damage caps on all cases have no effect at all on “frivolous lawsuits”.
A frivolous lawsuit is one where any reasonable person would agree that the plaintiff should get nothing. Damage caps, by contrast, only come into play when twelve reasonable jurors, a trial judge and then a panel of appellate judges agree that the plaintiff’s case is not only not frivolous—but that the plaintiff is entitled to recover a large damage award. Put another way, what big business and insurance companies are really asking for is for laws to prevent people who really have suffered catastrophic damages from getting justice from the people who caused the damage. In order to actually get paid in our system today, first 12 jurors have to agree that you deserve the damages, then the trial judge has to sign a judgment agreeing, and then the losing party can appeal that decision and get the damages reduced if they are not supported by the evidence. After going through all of that—12 jurors, a trial judge and three appellate judges—there is no way to argue that the damages weren’t actually suffered, and certainly no argument to be made that the case was “frivolous”.
The second argument made for damage caps is that insurance coverage is too expensive. But this argument is never, ever, followed by a promise that insurance rates will be lowered if damage caps are put in place. The insurance lobby says that we must have damage caps on what seriously injured people who deserve the money can recover, so that we can all have lower rates. Well, it seems to me that if we are all going to give up our rights based on that argument, then we ought to get a promise to lower rates in return. But we never do: in fact, we get just the opposite. In California, where there has been a cap on damages in medical malpractice cases for over a decade, rates have gone up 190%. Texas passed damage caps in medical malpractice suits three years ago, and the promised savings to doctors and consumers never materialized—but the insurance industry is making millions more. In exchange for a real loss of rights for the innocent injured, the public gets…nothing.
And if you think about it, its obvious that lowering the amount that insurance companies pay out to truly injured people won’t lower anybody’s health care costs. If a medical malpractice insurance company makes a lot more profits this year, will it use the profits to pay its shareholders and executives more–or will it lower malpractice insurance rates to all doctors? Insurance companies are in business to make money. You can decide what you think they will do with “extra” profits made because they don’t have to pay damages that are really owed.
And then lets assume that an insurance company actually did decide to lower its medical malpractice rates to doctors. Doctors like to make money, too. Do you think that the doctor who saves 5% on his medical malpractice insurance rates this year is going to charge all his patients less–or is he going to use the extra money to pay off debt or buy something he wants, instead?
You know the answer to these questions. And that’s why damage caps on what injured people can recover from doctors who have committed medical malpractice never, ever, lower health care costs.
And there is one more good reason that health care costs won’t go down by reducing the amount that doctors have to pay for the consequences of their medical mistakes. If the doctor and his medical malpractice insurance don’t have to pay for the damage they caused, who will? Who has to pay for the bills and the lost income and the pain? That would be health insurance companies if the injured patient has insurance–or the government (meaning you, the taxpayer) if the injured patient doesn’t have insurance. So damage caps don’t lower costs to anyone but medical malpractice insurance companies. Somebody has to pick up the tab for injuries caused by medical malpractice–and in a world of caps on damages paid by the people actually responsible, that someone is likely to be you. So the question is really this: why should doctors get away with not having to pay for the damages they cause? And why are they asking you to pick up the tab for them?
You should also know this: when a doctor commits medical malpractice and kills a family member or maims you, they’re not going to compensate you out of the goodness of their hearts. Medical malpractice insurance companies have no heart at all and are interested only in profits, not your problems. That “concerned citizens tort reform” group funded by big business and the insurance industry won’t help you, and neither will the politicians they put in office. Only the court system can help you, and it won’t be able to help if the insurance and corporate lobbyists get their way.
We all need to pay attention to what the issues really are, and not what the propaganda machine says they are.