Lawyers: Damage Caps No Malpractice Inflation Cure

By Matt Brady, NU Washington Bureau

NU Online News Service, March 30, 4:16 p.m. EST,Washington?Federal legislation that caps legal damages will not halt the problem of soaring malpractice premiums, according to a panel of legal experts who debated the issue last week and offered some alternative solutions.[@@]

Michael Saks, a professor of law and psychology and faculty fellow at the Center for the Study of Law, Science and Technology at the College of Law at Arizona State said one current proposal in the House of Representatives failed to address the issue properly.

Referring to H.R. 534, he said, "there is a real disconnect between the problems that medical malpractice presents society and the proposed solution," in the bill.

Stephen Landsman, the Robert A. Clifford Chair in tort Law and Social Policy at the DePaul University College of Law, added that the bill, "is bad policy and if enacted would make very bad law."

The bill, which was introduced in February by Rep. Christopher Cox, R-Calif., chairman of the House Homeland Security Committee, would limit non-economic "pain and suffering" damages in medical malpractice lawsuits to $250,000.

It would also restrict punitive damages to the greater of either double the economic damages awarded in the case or $250,000.

A largely identical bill, sponsored by Rep. Jim Greenwood, R-Pa., was approved in the prior congress and but failed to move in the Senate. The concept of capping non-economic damages also has the strong support of the White House and the insurance industry.

While the panelists had few positive things to say about the legislation, they did offer their own views as to what reforms could be undertaken in their place.

Their suggestions ranged from the establishment of a "near miss" reporting system, to let institutions know of medical problems they encountered, to the creation of a new court system staffed with judges more knowledgeable on health issues and neutral expert witnesses.

The "health court" proposal was made by Paul Barringer, the general counsel for Common Good, a group that describes itself as "dedicated to restoring common sense to American law."

The problem, Mr. Barringer said, is that "today the judges that sit and hear medical malpractice cases know next to nothing," about the issues involved, "and juries know even less."

The issue isn't one of intelligence, however, he added, but that a juries' knowledge is generally limited to only one case rather than an overall view of injuries and treatments, meaning that two cases involving similar injuries and circumstances could result in two entirely different verdicts.

"It's not that juries are stupid," Mr. Barringer said. "It's that they're making decisions based on the facts from case to case."

Under his proposal, Mr. Barringer said that cases would be initially screened by a review panel that could weed out simple cases and order immediate payment of damages.

More complex cases, he said, would be moved to the "health court" where judges would have a degree of training and guidance for dealing with malpractice cases and experts would be provided by the court rather than by the opposing sides.

However, Mr. Barringer conceded that establishing a health court would likely run into some serious legal and constitutional issues, not the least of which would be asking injured parties to give up their right to have their complaint heard by a jury. "The devil is in the details," he said.

Mr. Landsman also noted several problems with the "health court" proposal, adding that the review board method had been tried in a number of states during the 1970s and 1980s and had largely failed.

"There are a lot of devils in those details," he said. Mr. Landsman also took a negative view of taking a jury out of the equation. Juries, he said, are an elemental part of our justice system. "We solve our problems in front of juries."

Mr. Landsman also expressed concerns that these "health courts" would move away from the established rules of evidence and operate in a less transparent fashion, which Mr. Barringer denied was the aim of the proposal.

Under the proposal, Mr. Barringer said, Justices would simply be given a general guidance for handling cases, and not a specific set of rules and regulations. These guidelines, he explained, would be intentionally left general to "take into account advances and the evolution of medicine."

However, Mr. Landsman continued to maintain that smaller measures that are easier to implement but still effective could be undertaken more swiftly by the system. A main goal of medical malpractice reform, he said, should be to create a "culture of safety" in which protecting the health of a patient is given priority rather than protecting a provider from litigation.

One possible change, he said, should be the facilitating of data sharing between healthcare providers, including a "near miss" system that would allow providers to see possible problems experienced by others.

"We should be sharing data," he said. "That's not a pie in the sky. We could do it tomorrow." Mr. Landsman noted that legislation already exists in the Senate that would protect the transfer of patient safety information in Senate Bill 544, which was proposed by Sen. Jim Jeffords, I-Vt., and has the support of Majority Leader Bill Frist, R-Tenn.

Additionally, Mr. Landsman said that they system of insurance for malpractice itself should be re-examined to focus products on the hospitals and other facilities rather than on individual doctors. "Let's talk about enterprise insurance," he said. "Don't focus on the individual, focus on the enterprise."

On the legal side, Mr. Landsman acknowledged that the courts could use some guidance to bring a degree of consistency to the system, but said the focus should be on making healthcare better.

While their plans to resolve the problem differed, all the panelists agreed that the current proposal capping damages would do as much harm, if not more, than good.

Mr. Saks compared it to "taking traffic cops off the streets because too many speeders are getting tickets."

Mr. Landsman said he found it troubling not only in it's capping of damages, but in the way the bill would effectively close the "laboratories of the states" that could be used to develop other means of resolving the medical malpractice problem.

Mr. Barringer also took issue with the thinking behind the bill, saying that changes needed to be made to make system less about finding blame and more about working to help the victim of malpractice recover.

"We need to move away from a system that is punitive and towards a system that is collaborative," he said.

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Lawyers: Damage Caps No Malpractice Inflation Cure

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