House Acts to Limit Malpractice Awards

[Timber Loftis]

What crap. Let's hope this dies in the Senate.

The vote was also a crucial victory for doctors, insurance companies, the pharmaceutical industry and business groups, which had lobbied heavily for it.

Knock doctors off the list, and I agree. This is stuffing more $$$$ in the pockets of EvilInsuranceCo and BigDrugCo.

When Worker's Comp passed, it gave workers 100% guaranteed recovery for an injury at work, but limited the employer's liability. Hugely supported by industry, this law was immediately put to good use by subjecting employees to all manner of guinea pig-type exposures and injuries, because their recoveries were strictly limited to their salary.

Now hospitals can do the same. We now know that if your doctor hacks off the wrong leg it is worth no more than $250K. Thank you Congress for telling me what my leg is worth. This is unjust.

So you don't like big insurance premiums for doctors? Fine, limit the amount evil (evil, I say) insurance companies can charge for malpractice insurance. Regulate *that,* not the redress someone can get for being wronged.

So you don't like large jury awards? Fine - take those millions in punitive damage awards and don't give them to the plaintiff and lawyers, but instead set them aside in a Legal Aid fund so other victims who cannot afford a lawyer can access the money and pursue legal remedies.

But, without the looming prospect of huge punitive damage awards hanging over their heads, hospitals will be able to plug the numbers in and give you an acceptable loss-count where they'll still make a profit. That's just wrong. When a company is truly wanton, we should be able to hit them enough in damages *to hurt them,* even if that number is $6 $60 or $600 million. Otherwise, they won't be properly discouraged from willful and wanton misconduct.

Okay. [img]graemlins/rant.gif[/img] off. Read on.

From Today's NYTimes

House Acts to Limit Malpractice Awards
By SHERYL GAY STOLBERG

WASHINGTON, March 13 — The House passed legislation today imposing a $250,000 limit on jury awards for pain and suffering in medical malpractice cases, arguing that frivolous lawsuits are driving medical liability premiums out of control and forcing doctors out of business.

The vote of 229 to 196 with one member voting present, was an important victory for President Bush, who has made overhauling the nation's medical liability laws a centerpiece of his domestic agenda.

"Today's House vote," Mr. Bush said, "is an important step toward creating a liability system that fairly compensates those who are truly harmed, punishes egregious misconduct without driving good doctors out of medicine and improves access to quality affordable health care by reducing health care costs."

The vote was also a crucial victory for doctors, insurance companies, the pharmaceutical industry and business groups, which had lobbied heavily for it. By today, those groups were so confident the measure would pass that the American Insurance Association, an industry trade group, put out a press release lauding the vote hours before it was taken.

Now the measure moves to the Senate, where it faces an uncertain future. Senator Bill Frist, the majority leader, has vowed to take up medical malpractice legislation this month, and at least one influential Democratic senator, Dianne Feinstein of California, strongly supports revamping the liability laws.

But several prominent Senate Republicans have said that any malpractice legislation would have to include an exception for egregious cases, like the one involving Jésica Santillán, the 17-year-old who died after transplant surgeons gave her a heart and lungs of the wrong blood type.

And backers of the House bill are acutely aware that Republicans hold only 51 votes in the Senate, nine short of the number to break a filibuster.

"We're going to have to find nine Democrats," said Representative James C. Greenwood, Republican of Pennsylvania, the chief sponsor of the House bill. But, he added, "I think we have the best chance we've ever had, and we have a president who is very keen to get this done."

So keen, in fact, that on Wednesday Mr. Bush invited about a dozen undecided lawmakers to the White House to urge them to support the bill.

At the time, Republican leaders counted 220 votes in their camp. Representative Billy Tauzin, the Louisiana Republican who shepherded the measure on the House floor, said today that Mr. Bush was instrumental in bringing the total to 229. Sixteen Democrats voted with 213 Republicans to ensure the measure's passage, while 9 Republicans voted against the bill. Voting present was Representative Spencer Bachus, Republican of Alabama.

"The president was very persuasive," Mr. Tauzin said. "He basically made the case for it and urged them to consider the importance of for the nation's good. This was a national thing that he was very invested in personally."

Changing medical malpractice law has long been high on the Republican agenda. But the issue has gained national attention this year, in part because President Bush has taken a strong stand, and in part because doctors around the country have engaged in highly publicized walkouts and rallies to protest high insurance costs.

The bill the House passed today does not limit jury awards for medical and funeral expenses. But the caps it imposes on pain and suffering damages apply not only to lawsuits filed against doctors, but also to those filed against insurers, pharmaceutical companies and medical devices — a provision that Representative Henry A. Waxman, Democrat of California, called "another reward that Republicans are giving to the pharmaceutical industry."

Democrats, adopting the argument of trial lawyers and consumer groups, say the House bill will unfairly prevent innocent victims of medical malpractice from seeking legal recourse. They also argue that there is no evidence the bill will actually reduce liability premiums.

"We're voting on a bill that overrides state law and undercuts compensation for victims of medical malpractice, yet we don't know whether medical malpractice premiums will come down," said Representative Sherrod Brown, Democrat of Ohio.

Mr. Brown added: "We're supposed to take it on faith, trust the insurance companies that they will pass along the savings. We can't trust patients, we can't trust juries, we can't trust lawyers, but we can trust the insurance companies?"

At times, today's debate seemed like a face-off between victims. Democrats showed pictures of victims of medical malpractice, while Republicans talked about what Representative Tauzin calls "the hidden victims" and cast the debate as one over access to medical care.

"What we don't often hear about are the victims of a medical malpractice system gone awry," Mr. Tauzin said. "They are the victims who get hurt, who get injured, who get denied access to health care at critical moments, because some doctor couldn't get his insurance renewed because the premiums are too high."

Today's vote came after hours of contentious debate in which Democrats complained that Republicans were preventing an alternative measure from getting a fair hearing. In a series of party-line votes late Wednesday, Republicans on the House Rules Committee voted to block any amendments from being introduced, an action that enraged Representative John D. Dingell, the Michigan Democrat and chief sponsor of the alternative, which would not have imposed caps on jury awards.

"It is shameful and it is totally inconsistent with the practices, rules and traditions of the House of Representatives," Mr. Dingell said, calling the move "a bite on the throat of the right to free debate."

[Attalus]

Well, having been sued four times and having won all four, I can tell you that physicians and surgeons need some relief. A surgeon has to pay $100,000+ a year in malpractice insurance. Perhaps the limit on awards would make plaintiff's attorneys less eager to take up the cudgels.

[Timber Loftis]

Like I said Attalus, you can cut off the sharks from getting the $$$$ by limiting how much of the punitive damages the plaintiff & lawyer walk away with. But, where there is real wrongdoing that is eggregious enough to merit punitive damages, the jury should be able to slap the Company, Doctor, Insurer, Auto Maker (whoever) with enough money to hurt them so they won't do it again and so others won't do it.

Plus, too much of a limit on recovery could have one very bad result: making lawyers not take cases where there really is an injury and injustice. I'm all for limiting what my profession walks away with, and for limiting silly windfalls to plaintiffs, but I do not want to cut truly injured people off from getting legal help and justice.

Here's a thought. If IWF is an indication, the VAST majority of people don't like plaintiffs getting an unfair windfall from a lawsuit. I don't either. How come it happens, then?? And, I'll note that a "people are idiots" response is likely not the only reason - and again using 10K+ member IWF as a sample, I am beginning to doubt the "people are idiots" notion anyway. Why do juries award these amounts if we all hate it??

[edit] Oh, and I'm sorry for your past woes, Attalus. I don't want to come off as unsympathetic. I hate being sued. And, for a 29-yr-old it has happened to often to me for my taste.

[ 03-14-2003, 02:47 PM: Message edited by: Timber Loftis ]

[Attalus]

Well, Timber, as I am sure you know, juries get vindictive. I was originally a defendant in the famous case tried here in Van Zandt County against American Home Products (I was dropped from the suit when I agreed to testify for the plaintiff, a patient of mine.) The jury was furious at all of the coverups that AHP had engaged in and resolved to punish them. It seems to me that to limit puitive damages would be a step in the right direction.

[Timber Loftis]

I am embarrased to admit I am unfamiliar with the case, Atty. Coverups? Are you saying AHP did not deserve to get punished? Or maybe that punishing AHP was not right because of the harm to a viable business even though AHP may have deserved punishment?

Sorry to keep pressing you on the issue. Just inquiring.

[Rokenn]

There was a study released earlier this year that debunked the whole idea that high court settlements were the cause of the general rise in malpractice insurance rates. The real culrpit is that stock market. When the stock market goes down, rates go up do to lower return on investment to the insurance companies. When the market is up, they lower premiums to get more money to invest in the market. I'll try and dig up a link to the study.

[Rokenn]

This isn't a link to the actually study, but is a good article on the subject and makes mention of what I talked about:
Malpractice insurance debate heating up

[antryg]

Attalus, I agree that malpractice rates have reached "criminal" levels. (Only a slight pun intended.) Good doctors are being punished by the actions of bad doctors/hospitals. When then are these bad doctors going to be punished. Self-regulation doesn't seem to be working. If a forklift operator is fired if found drunk or on drugs while on the job; then why isn't a doctor? Rare as they are, there are cases of doctors being criminally negligent not once but several times; ending up in prison but still not losing their license. These cases are the things which lead to juries being punative in their awards.
Timber Loftis, I don't think that the legal profession is blameless in this regard either. There are ambulance chasing lawyers which bring unjust, unsubstantiated, and flat out dishonest lawsuits into our courts. They just keep throwing lawsuits out their and wait for the one that pays off. Why aren't these lawyers disbarred? What I would like to see is that a lawyer that brings a frivilous suit has to personally pay for all legal and court expenses and those who knowlingly bring fraudulent claims to civil court be disbarred.

I know that these examples do not reflect the vast majority of either doctors or lawyers. What bothers me is that self-regulation doesn't seem to be working and no honest attempt is being made to make it work, only the demand that "we will handle it ourselves". This is a serious problem that does reflect an outpouring of real anger against the deception and lies of companies/doctors/lawyers etc.. When doctors and lawyers take self-regulation seriously and the public demands that insurance companies are held accountable for their own fisical mismanagment, then I think we will be well on the way to reaching an equitable solution.

[Attalus]

Originally posted by Timber Loftis: I am embarrased to admit I am unfamiliar with the case, Atty. Coverups? Are you saying AHP did not deserve to get punished? Or maybe that punishing AHP was not right because of the harm to a viable business even though AHP may have deserved punishment? Sorry to keep pressing you on the issue. Just inquiring.

Oh, yes, AHP deserved to get punished, but they got punished, IMHO because the jury got angry over the fact that AHP knew that Fenflurmine could damage heart valves, as a result of their own clinical testing, and they withheld the knowledge from both prescribing physicians and the FDA. Not for any actual harm the patient sustained, evidence of which was, shall we say, underwhelming. But then, the lawyers got busy and went after other, useful drugs like Vioxx, hoping to land a similar bonanza. You get afraid to prescribe anything.