Anything Goes: Arguing for—and Against—Medical Malpractice Caps

Posted on 05-20-2014 by
Tags: Real Law

Brought to you by the Real Law Editorial Team

Understanding cycles is important when making predictions. That’s true of weather events, but it can also apply to many political and legal issues.

The debate surrounding caps on awards in medical malpractice cases, for example, seems to follow a normal ebb and flow. In states that have enacted caps there is lobbying to raise or eliminate those limits, while states that prohibit caps are under pressure to introduce measures that would allow them.

Rinse and repeat—until, that is, one jurisdiction breaks the cycle by adopting, significantly revising or eliminating cap legislation. Demands elsewhere are infused with renewed intensity, and anything can happen.

Indeed, recent events suggest that a new round of heightened deliberation concerning the merits of caps might be gaining momentum.

A Gathering Storm?

On March 13, 2014, the Florida Supreme Court struck down a state cap on wrongful death non-economic damages, on the grounds that the limit violated the Equal Protection Clause of the Florida constitution. The decision was hailed beyond the state’s borders as a victory for plaintiffs (and the legal profession) over the interests of insurers, business leaders and many in the nation’s medical profession.

But then, only a month later, state lawmakers in Kansas voted to increase a long-standing limit on the amount of money plaintiffs can receive for non-economic damages in medical malpractice cases. That followed a 2012 ruling by the state’s Supreme Court that upheld the constitutionality of caps.

Meanwhile, lawyers and consumer groups in California have gathered enough signatures for a ballot measure to raise the state’s 1975 pain and suffering limit of $250,000. Parties opposed to such a measure are amassing millions of dollars to fight what is widely expected to be an acrimonious public battle over the issue in the Golden State.

To Cap or Not to Cap

Those in favor of caps argue that limits are needed to protect health-care providers and others. They claim caps will control runaway insurance rates, protect against provider shortages, increase funds available for care and attract businesses.

Opponents say that caps negatively affect victims and families and target vulnerable groups, such as children, the elderly and the disabled, while doing nothing to deter doctors and health-care providers from offering substandard care.

Both sides raise questions related to who gets to call the shots: lawmakers or the courts.

At stake in the debate is the staggering overall annual cost of medical liability cases in the United States, which the Harvard School of Public Health pegged at roughly $55 billion—or 2.4 percent of annual health-care spending—in a 2010 report.

At the same time, opponents of caps point to another figure: the number of Americans affected each year by medical mistakes. Writing in The New York Times in 2012, Dr. Sanjay Gupta—associate chief of neurosurgery at Atlanta’s Grady Memorial Hospital and chief medical correspondent for CNN—estimated the number could be as high as 200,000 annually.

2013 state medical malpractice payouts

Searching for Evidence

What’s really driving those numbers and costs is unknown—although, as Dr. Gupta argues, defensive medical procedures may be one significant contributing factor.

Moreover, for all the rhetoric and impassioned arguments over the subject of caps, empirical evidence to conclusively support either side is often missing.

To illustrate that point, a comprehensive 2012 Georgetown University Law Center study concluded that despite common claims made in policy debates, “the theoretical connection between tort reform and medical malpractice insurance premiums is ambiguous.”

Studies examining alternatives, such as no-fault systems and screening panels, have also decried a scarcity of reliable data needed to support a direct connection to reductions in costly malpractice litigation.

Looking Ahead

So where does all that leave observers of the current debate about malpractice caps? It may be premature to say.

Recent developments could be mere local tempests, or they could coalesce into a larger national examination of the issue. In turn, that might finally prompt a concerted effort to come up with the hard data that’s needed to make informed decisions either for or against limits in medical liability cases.

Until that happens, the familiar cycle in which claims meet counterclaims is likely to continue, and a forecast for the outcome is much as it is now: expect more of the same.

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