Tort Reform

"I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution."
- Thomas Jefferson

"Crushed by My Own Reform"
By Frank Cornelius
New York Times, October 7, 1994

About the Author: Frank Cornelius was a former lobbyist whose clients included the Insurance Institute of Indiana. He passed away in 1995.

In 1975, I helped persuade the Indiana Legislature to pass what was acclaimed as a pioneering reform of the medical malpractice laws: a $500,000 cap on damage awards, and elimination of all damages for pain and suffering. I argued successfully that such limits would reduce health care costs and encourage physicians to stay in Indiana—the same sort of arguments that now underpin the medical industry's call for national malpractice reform.

Today, from my wheelchair, I rue that accomplishment. Here is my story.

On Feb. 22, 1989, I underwent routine arthroscopic surgery after injuring my left knee in a fall. The day I left the hospital, I experienced a great deal of pain and called the surgeon several times. He called back the next day and told my wife to get me a bedpan. He then left on a skiing trip. I sought out another surgeon, who immediately diagnosed my condition as reflex sympathetic dystrophy—a degenerative nervous disorder brought on by trauma or infection, often during surgery.

A few months later, when a physical therapist improperly read the instructions on a medical device, I received a tremendous current of electricity through my left leg. This seriously complicated my condition.

In August 1990, another physician proposed a medical procedure, but used the wrong instrument; that left me with several holes in the vena cava, the main vein from the legs to the heart. I would have bled to death in my room if my wife had not come to see me that evening and called for help. As another physician tried to save my life, he punctured my left lung.

The cost of this cascading series of medical debacles is painful to tally:

I am confined to a wheelchair and need a respirator to keep breathing. I have not been able to work.

I have continuous physical pain in my legs and feet, prompting my doctor to hook me up to an apparatus that drips morphine. My pain used to rate a 10 on a scale of 1 to 10. Now it's about a 4.

Twice, I have received last rites from my church.

My marriage is ending, and the emotional fallout on our five children has been difficult to witness, to say the least.

At the age of 49, I am told that I have less than two years to live.

My medical expenses and lost wages, projected to retirement age if I should live that long, come to more than $5 million. Claims against the hospital and physical therapist have been settled for a total of $500,000—the limit on damages for a single incident of malpractice. The Legislature has since raised that cap to $750,000, and I may be able to collect some extra damages if I can sue those responsible for the August 1990 incident that nearly killed me. But apparently because of bureaucratic inertia, the state medical review panel that certifies such claims has yet to act on mine.

The kicker, of course, is that I fought to enact the very law that limits my compensation. All my suffering might have been worthwhile, on some cosmic scale, if the law had accomplished its stated purpose. But it hasn't.

Indiana's health care costs increased 139.4 percent from 1980 to 1990—just about the national average. The state ranked 32d in per capita health care spending in 1990—the same as in 1980.

It's understandable that the damage cap has done nothing to curb health care spending; the two have almost nothing to do with each other. In 1992, the Congressional Budget Office reported that medical malpractice litigation accounted for less than 1 percent of total health care spending. I doubt that the percentage in Indiana is much different.

Proponents of Indiana's damage cap argue that doctors here pay less for malpractice insurance than their colleagues in other states. What they don't say is that malpractice premiums are artificially low because insurers need to offer only $100,000 of coverage. Negligently injured patients who are entitled to more than $100,000 must look to Indiana's state-run excess compensation fund.

Because that fund is supported by a surcharge on doctors, the true cost of malpractice insurance in Indiana can be calculated only by adding premiums and surcharges together. And the surcharge for the compensation fund has ballooned.

Doctors and insurers have spent millions propagating the myth that America is awash in unjustified malpractice suits and crazy jury verdicts. And apparently they have captured the attention of the President and Congress: malpractice damage caps were part of many health care measures in Congress this year, and they are sure to be back when the issue resurfaces in the next session

The prospect that these "reforms" will be enacted is frightening. Make no mistake, damage caps are arbitrary, wholly disregarding the nature of the injury and the pain experienced by the plaintiff. They make it harder to seek and recover compensation for medical injuries; extend unwarranted special protection to the medical industry; and remove the only effective deterrent to negligent medical care, since the medical profession has never done an effective job of disciplining negligent doctors.

Medical negligence cannot be reduced simply by restricting consumers' legal rights. That will happen only when the medical industry begins to effectively police its own. I don't expect to live to see that day.

LOS ANGELES TIMES
April 20, 2007
In the courts Juries usually side with doctors in trial About 98,000 Americans die from "medical mistakes" each year, but if you're thinking about a lawsuit, be warned: Juries sympathize more with doctors.

Negligence matters, but medical defendants are favored in the courtroom because of the doctor's superior resources, the social standing of physicians and social norms against "profiting" by injury, according to a University of Missouri-Columbia law professor who examined 17 years of malpractice cases.

When the evidence of negligence is conflicting, juries are more willing to give physicians the "benefit of the doubt," according to study author Philip Peters. But what usually seals it for doctors are expert witnesses. Juries agree with them in 80 percent to 90 percent of these cases, a better agreement rate than physicians typically have with each other, Peters said.

12-30-07
From the Los Angeles Times

Lacking lawyers, justice is denied
Attorneys often avoid medical malpractice suits because California limits 'pain and suffering' awards to $250,000.

By Daniel Costello
Los Angeles Times Staff Writer
December 29, 2007

Dave Stewart's 72-year-old mother went to Stanford University Medical Center for double knee-replacement surgery in April. Four days later, she was dead.

To Stewart, an anesthesiologist, it seemed a classic case of medical malpractice. After the operation, his mother developed sharp abdominal pain that she described as "10 on a scale of 1 to 10," according to her medical records.

The hospital failed to diagnose the cause of her pain and continued to treat her with narcotics. Her vital signs became unstable and she was moved to the intensive care unit, but she died of complications from an untreated bowel obstruction. State regulators cited the hospital in the case this fall.

Stewart and his two sisters decided to sue, and they approached two dozen lawyers. One after another declined to take the case, always for the same reason: It wasn't worth the money.

In 1975, California enacted legislation capping malpractice payments after an outcry from doctors and insurers that oversized awards and skyrocketing insurance rates were driving physicians out of the state.

The law limited the amount of money for "pain and suffering" -- usually the physical and emotional stress caused from an injury -- to $250,000. There is no limit on what patients can collect for loss of future wages or other expenses.

Over the years, it has been easy to quantify the effects of the law, known as the Medical Injury Compensation Reform Act, or MICRA. In the years since the law was enacted, malpractice premiums in California have risen by just a third of the national average, and doctors say the law now helps attract physicians to the state. Proponents also say it discourages frivolous lawsuits.

Thirty states have enacted similar legislation. Two Republican presidential candidates -- Mitt Romney and Rudolph W. Giuliani -- have recently endorsed the approach as a possible national model.

It's been harder to tally the law's costs. Critics say it is increasingly preventing victims and their families from getting their day in court, especially low-income workers, children and the elderly. Their reasoning: The cap on pain and suffering has never been raised nor tied to inflation.

Meanwhile, the costs of putting on trials are often paid by attorneys and continue to rise each year. That means those who rely mainly on pain and suffering awards -- typically people who didn't make much money at the time of their injury -- are increasingly unattractive to lawyers.

Several states have set their malpractice caps considerably higher than California's because of worries that they affected poorer patients the most. Some state courts have begun to examine the fairness of their malpractice laws, especially those not tied to inflation. California lawmakers have rarely reconsidered the state's malpractice legislation.

Yet a Times analysis of state court records, physician payment data and insurer financial records suggests that the cap is increasingly preventing families such as the Stewarts from getting their day in court.

Among the findings:

* Court malpractice filings have fallen in eight of the 10 most populous counties in California that track such information. In Los Angeles, they're down 48% since 2001 to their lowest per-capita level in nearly four decades. In Orange County, they fell 29% over the same period

* At Kaiser Permanente, where members must resolve malpractice claims in arbitration rather than court, claims have fallen almost 20% since 2001.

* The number of payments to victims and their families across the state was down 24% since 1991, according to a review of a federal government database of nearly half a million claims. Nationally, the decline over the same period was 10%.

* The malpractice earnings of California insurers has far outpaced national averages in recent years. According to financial reports, insurers in the state have paid out just 39 cents of every premium dollar since 1991. The national average was 63 cents.

Proponents of the law attribute the state's recent decline in malpractice lawsuits to several reasons unrelated to its award cap, including a slight drop in overall personal injury cases nationwide and a possible decrease in medical errors in recent years.

Some states have seen larger per-capita declines in malpractice cases than California, after they enacted caps on medical malpractice awards.

A spokesman for Kaiser Permanente said its drop in malpractice filings was the result of a company program begun five years ago in which doctors apologized to patients for errors rather than wait to fight the accusations in court.

Some malpractice victims and their families say the benefits of the law have swung too far in favor of doctors. Without accountability, some ask, what will keep physicians from making careless mistakes?

Craig Backer of Caliente, near Bakersfield, suffered headaches for five years and eventually lost hearing in his left ear. Although the former Marine visited a Veterans Affairs hospital half a dozen times, doctors told him his condition was temporary and never performed advanced screening tests, according to his family.

Last spring, Backer began having problems with his vision and returned for a battery of exams. Doctors discovered that he had a large brain tumor and scheduled surgery days later. It was successful, but Backer remains in the hospital and can't talk. He is also learning how to swallow again, and the left side of his face droops. Doctors say they don't know if he will improve.

His wife, Jeriah, wants to sue but the case is subject to California's malpractice cap. Six lawyers have turned her down. One told her that because her husband didn't earn a large income as a mechanic, the case wasn't feasible. "We're living a nightmare," she said.

Linda Fermoyle Rice, one of the state's best-known malpractice lawyers, says the law often leads to difficult trade-offs.

"It has had the effect of making an infant who is severely injured more valuable than those who don't make it, since families of children who die are limited to the cap," said Rice, who is based in Woodland Hills. "It's sad to say, but most attorneys I know won't take a dead-baby case."

A 2003 Rand Corp. report found that the law has reduced jury awards by 30%, and that the savings have come largely at the expense of severely injured or impaired patients.

On average, California juries (which are rarely informed of the cap during trials) awarded $800,000 in malpractice death cases from 1995 to 1999, but the amounts were later reduced to $250,000 under the law. This suggests that medical malpractice victims and their families could be reaping much larger payouts than the law allows. But proponents of MICRA say raising the cap could harm patients.

"Raising the MICRA cap would significantly increase healthcare costs, limiting patient access to doctors, hospitals and clinics throughout California," said Lisa Maas, executive director of Californians Allied for Patient Protection, a trade group. "MICRA protects patient access to healthcare."

San Diego obstetrician Philip Diamond is skeptical that the law is keeping patients from obtaining malpractice lawyers. But he acknowledged that limits on payouts do lead to trade-offs.

"If we raise the cap, where does that money come from?" he asked. "Any increase means a drop in access."

The link between malpractice payouts and increases in doctors' insurance premiums, though, remains unclear.

One of the largest studies done on the topic -- by Dartmouth College researchers in 2003 -- concluded that malpractice payments had risen in line with medical care costs, whereas doctors' insurance premiums grew far faster -- by double-digit percentages annually for some specialties.

To some, that suggests that recent malpractice premium increases may have had more to do with insurers' business models and financial investments -- including documented losses in their investment portfolios in recent years -- than with their core businesses.

Nationally, the rise in malpractice premiums has slowed in recent years.

"Just 16.2% of insurers raised their malpractice premiums in 2007 compared to 77.3% in 2003," said the Medical Liability Monitor, a newsletter based in Chicago.

Douglas Heller, executive director of the Santa Monica-based Foundation for Taxpayer and Consumer Rights, says the 1975 liability caps aren't the reason that doctors' insurance premiums have been relatively low in California. He says the reason is that, unlike other states, insurance is tightly regulated here. In a 1988 statewide vote, Proposition 103 rolled back all casualty insurance rates by 20% and required the approval of the state insurance commissioner for any rate increase.

Malpractice rates rose sixfold between 1975 and 1988 despite the state's awards cap, Heller said, but have held roughly steady since Proposition 103's passage.

Stewart, of San Diego, said he had long been a MICRA advocate, believing it was in the best interest of doctors and patients. Not anymore.

After he and his family got over the initial shock of losing their mother, they wanted justice. Most attorneys turned them down over the phone, although three agreed to meet in person. Last summer, the entire family and their 80-year-old father made the trip to San Francisco and Oakland for meetings.

One lawyer said he would take the case only if the family paid the expected $50,000 in trial costs upfront.

San Francisco lawyer Brad Corsiglia at first seemed interested but later sent a letter dated July 11, 2007, that read: "As you can understand, with a cap of $250,000, we are limited in the type of case we can take on a contingency fee basis to only those cases that involve catastrophic economic losses."

"In 1975 you could buy a house for that money, and today what does it get you?" asked Stewart, whose parents would have celebrated their 54th anniversary last month. "Every year MICRA stays the same is another year that people who have been wronged will be denied the same justice."

Stanford Medical Center declined to comment on the case.

Some state courts have struck down malpractice caps that didn't rise over time. Last month, an Illinois circuit court judge ruled unconstitutional a 2005 state law that caps noneconomic damages in medical liability cases. The case is on appeal.

In 2006, a Louisiana appeals court ruled that its state malpractice cap, established in 1975, did not adequately compensate patients and needed to be raised to $1.6 million. The ruling was overturned this year by the state's Supreme Court.

Some families who succeed at trial in California are often surprised at how little money they see in the end.

Becky Dessenberger's 2-year-old son, Jacob, died at Children's Hospital in Oakland in 2004 after surgery to repair a foot. Her son, who was suffering from bronchitis, was given a high dose of pain medication though the drug is known to cause slower breathing. He died the next day.

In 2006 the family settled with the hospital, which acknowledged no wrongdoing, for just under the $250,000 cap. After deducting for trial costs and lawyer fees, Dessenberger, 36, of Suisun City, said the family received "a little over" $100,000.

Dessenberger said no money would help ease her grief, but the small amount felt to her and her family like a slap in the face.

"Because he was a baby, this is all he was worth," she said. "I think it is horrible. I don't think it's fair."

daniel.costello@latimes.com

Times staff writers Doug Smith and Sandra Poindexter contributed to this report.

12-30-07
Caps on Medical Malpractice Cap Citizens Right to Justice By Evan Rosen
A recent study of Medical Malpractice data conducted in California since it's enactment of legislation capping awards on "non-economic" ...

9-17-07
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Kerrville Daily Times, TX - 6 hours ago In 2003, legislators reformed state laws and capped noneconomic damages for malpractice suits at $250000. Since then, possibly thousands of patients and ...

8-8-07
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5-20-07
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“When it comes to disclosing medical errors to patients, there is a gap between physicians' attitudes and their real-world experiences admitting such errors, according to a University of Iowa study.”
Study Finds Gap Between Practice, Attitudes Toward Medical Errors

2005 Was the Most Profitable Year Ever for the Insurance Industry; 2006 Also Showing Record Profits (October 6, 2006)

Consumer Groups And Medical Malpractice Survivors Form United Front Against “Health Courts” (PDF)
Victim's Letter Consumer
Groups Letter (June 21, 2006)

New England Journal of Medicine: The Legal System Works! ( PDF) (May 15, 2006)

New England Journal of Medicine: Litigation Against Hospitals Improves Patient Safety (PDF) (May 15, 2006)

New Study Finds Malpractice Premiums Only A Small Fraction of Doctors’ Expenses (PDF) (May 8, 2006)

Medical Malpractice Lawsuits Save Lives (PDF) (April 26, 2006)

The Real Story of Texas Insurance Rates (PDF) (April 16, 2006)

Health Courts are Unconstitutional: Upcoming Law Review (PDF) (March 24, 2006)

Health "Courts" Are a Terrible Option for Patients (PDF) (February 17, 2006)

Health "Courts" Are Unconstitutional (PDF) (February 17, 2006)

press release

Study Casts Doubt on Claims That the Medical Malpractice System Is Plagued By Frivolous Lawsuits

System Does a Good Job of Rejecting Claims Without Merit, but Administrative Costs Are Exorbitant

For immediate release: Wednesday, May 10, 2006

Boston, MA – The debate over medical malpractice litigation, which raged during the last presidential campaign, continues as a hot-button political and health care issue in the U.S. The Senate is expected to vote soon on legislation to impose a federal cap on noneconomic damages in malpractice suits, following on similar bills that passed the House of Representatives but stalled in the Senate last year. One popular justification for tort reform is the claim that “frivolous” medical malpractice lawsuits—those lacking evidence of substandard care, treatment-related injury, or both—enrich plaintiffs’ attorneys and drive up health care costs. A new study by researchers from the Harvard School of Public Health (HSPH) and Brigham and Women’s Hospital challenges the view that frivolous litigation is rampant and expensive.

The researchers analyzed past malpractice claims to judge the volume of meritless lawsuits and determine their outcomes. Their findings suggest that portraits of a malpractice system riddled with frivolous lawsuits are overblown. Although nearly one third of claims lacked clear-cut evidence of medical error, most of these suits did not receive compensation. In fact, the number of meritorious claims that did not get paid was actually larger than the group of meritless claims that were paid. The findings appear in the May 11, 2006 issue of The New England Journal of Medicine.

“Some critics have suggested that the malpractice system is inundated with groundless lawsuits, and that whether a plaintiff recovers money is like a random ‘lottery,’ virtually unrelated to whether the claim has merit,” said lead author David Studdert, associate professor of law and public health at HSPH. “These findings cast doubt on that view by showing that most malpractice claims involve medical error and serious injury, and that claims with merit are far more likely to be paid than claims without merit.”

The authors reviewed 1,452 closed claims from five malpractice insurance companies across the country. They focused on four clinical categories: surgery, obstetrics, medication and missed or delayed diagnosis, areas that collectively account for about 80% of all malpractice claims filed in the U.S. Specialist physicians in each of these clinical areas reviewed the claims and the associated medical records to determine whether the plaintiff had sustained an injury from care. If an injury had occurred, the physicians judged how likely it was to have been due to medical error.

The reviewers found that almost all of the claims involved a treatment-related injury. More than 90% involved a physical injury, which was generally severe (80% resulted in significant or major disability and 26% resulted in death). The reviewers judged that 63% of the injuries were due to error. The remaining 37% lacked evidence of error, although some were close calls.

Most claims (72%) that did not involve error did not receive compensation. When they did, the payments were lower, on average, than payments for claims that did involve error ($313,205 vs. $521,560). Among claims that involved error, 73% received compensation. “Overall, the malpractice system appears to be getting it right about three quarters of the time,” said Studdert. “That’s far from a perfect record, but it’s not bad, especially considering that questions of error and negligence can be complex.” The 27% of cases with outcomes that didn’t match their merit included claims that went unpaid even though the injury was caused by an error (16%); claims that were paid but did not involve error (10%); and claims that were paid but did not appear to involve a treatment-related injury (0.4%).

However, the study did not paint a uniformly positive picture of the current malpractice system. The costs of litigating claims, including defense costs and contingency fees paid to plaintiffs’ lawyers, averaged $52,521 per claim. Overall, these administrative costs amounted to 54% of the compensation paid to plaintiffs. “Deciding negligence is a very expensive process,” said Studdert. The authors also found that it took an average of five years from injury to resolution of the claim—a long time for plaintiffs to wait for compensation and for defendants to endure the uncertainty that litigation entails.

Finally, the authors found that the claims that did not involve errors absorbed a relatively small piece of the costs of compensation. Eliminating those claims would decrease the system’s compensation and administrative costs by no more than 13% to 16%. “Many of the current tort reform initiatives, such as caps on noneconomic damages, are motivated by a perception that ‘jackpot’ awards in frivolous suits are draining the system,” explained Michelle Mello, an associate professor of health policy and law at HSPH and a co-author of the study. “But nearly 80% of the administrative costs of the malpractice system are tied to resolving claims that have merit. Finding ways to streamline the lengthy and costly processing of meritorious claims should be in the bullseye of reform efforts.”

In a separate study released May 10 by the Robert Wood Johnson Foundation’s Synthesis Project, Mello examined the effects of the recent increases in malpractice insurance premiums on the delivery of health care services and the impacts of state tort reforms. Reviewing existing studies, the report concluded that the deteriorating liability environment has had only a modest effect on the supply of physician services. “The best evidence shows, at most, a small overall decrease in the number of physicians practicing in high-liability states compared to lower-risk states, though some rural areas have been more affected,” Mello said. Aside from caps on noneconomic damages, most tort reforms adopted by states in response to malpractice crises have not been effective in boosting physician supply or reducing insurance or litigation costs. Damages caps “help constrain growth in litigation costs and insurance premiums over time, but disproportionately burden the most severely injured patients.” The study is available here

Health : Medical Malpractice Lawsuits Not the Cause of Health Care ...
All American Patriots (press release), Sweden - 3 hours ago
10, 2007 -- WASHINGTON, DC – Despite claims by business and medical lobbying interests and the Bush administration, there is no medical malpractice lawsuit ...

"Recommended Reading...Stephanie Mencimer's revealing book about the "Tort Reform" movement should be required reading for politicians, journalists and anyone who could one day become a victim"

courthose door

Malicious Intent
Tort Deform, NY - Jan 12, 2007
Thanks to a tort-reform law championed by George W. Bush in 1995, state law reduced the punitive damages by 97 percent. With no prospect of ever losing a ...

When Tort Reform Backfires
Tort Deform, NY - Jan 8, 2007
Sometimes I think it must be a conspiracy by tort reform lobbyists as a way of keeping themselves lucratively employed, but it's not unusual to see some ...

MYTHBUSTER Series: DEBUNKING MYTHS ABOUT TORT SYSTEM COSTS (Vol 3.)
Tort Deform, NY - 4 hours ago
... bogus and its annual release is little more than a public relations gimmick used by the special interests behind the national “tort reform” movement. ...

Response To: A Supreme Court Justice Begins the Tort "Reform" Movement
Tort Deform, NY - Jan 12, 2007
Whenever debating this issue be sure to always call "Tort Reform" what it really is "corporate Cost Shifting/Corporate welfare". ...

The Victims of Senate Bill 3
Tort Deform, NY - Jan 19, 2007
Georgia’s tort “reform” law discourages many attorneys from representing malpractice victims. After all, why take a case that you alone will have to finance ...

March/April 2005 - VOLUME 26 - NUMBERS 3 & 4

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T A K I N G A W A Y V I C T I M S ' R I G H T S
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Unequal Justice
The Hidden Gendered Impact
of "Tort Reform"

By Darshana Patel

Five years ago, Sherry Keller underwent a complete hysterectomy. Soon after the difficult surgery, however, she began experiencing problems.

Keller’s doctor called her into the office to check on the incision. Cleaning the incision, the doctor pulled on the wound. Because the surgeon did not properly suture her, the incision opened from hip to hip.

The doctor then left Keller alone on the examination table for over a half an hour. as she proceeded to check on other patients. Meanwhile, Keller went into shock, and lost and regained consciousness three or four times. Eventually, she fell off the examination table, hitting her head and breaking her neck.

When she regained consciousness, Keller managed to drag herself into the hallway to get help. After finding Keller in the hallway, the doctor argued with Keller’s husband about whether or not to call an ambulance. Despite her doctor’s protests, Keller was finally taken to the hospital. While the clock ticked, Keller’s spinal cord swelled and caused even more damage.

Today, Sherry Keller is an incomplete quadriplegic, confined to a wheelchair.

If the Bush administration gets its way, in the future women like Sherry Keller will be entitled to no more than $250,000 for the pain and suffering caused by doctor misconduct.

A cap on medical malpractice lawsuits is just one among many changes to the U.S. civil justice system that the Bush administration and the Republican-controlled Congress are trying to engineer. This “tort reform” agenda [a tort is an act of negligence or wrongdoing, and torts is the area of law by which victims of wrongdoing can sue perpetrators for compensation] has long been a top priority of Big Business, which does not want to be held liable for the wrongs it commits and particularly dislikes the unpredictability inherent in decision-making by juries. In February, Congress passed and President Bush signed a bill to change the way class actions — suits brought by groups of victims — are handled.

Lost among the propaganda campaign for “tort reform” waged by Big Business and its allies, say civil justice and women’s groups, is the way in which these proposed — and increasingly implemented — changes in the justice system would discriminate against women like Sherry Keller.

Pain and suffering

High on the corporate “tort reform” agenda is a limit or cap on non-economic damages. As opposed to economic damages, which compensate injured parties for out-of-pocket expenses such as loss of income and medical bills, non-economic damages compensate plaintiffs for injuries that are difficult to quantify in market value — though they may be just as damaging. Examples of non-economic damages include physical and emotional suffering, physical impairment, infertility and injury to reputation. Sexualized injuries from sexual assault or rape and gynecological malpractice injuries related to reproductive health such as infertility, injury to the breasts and the reproductive system are all considered non-economic damages.

There is no science to translating non-economic injuries into a dollar award. By necessity, the compensation that victims should receive for their injuries is determined on an individual basis by judges and juries based on the evidence presented in each case, not by reference to any set market value.

In considerable part because of the uncertainty introduced by such a system, corporate lobby groups, the insurance industry and the healthcare industry have prioritized caps for non-economic damages. “We think it is a question of finding reasonable parameters,” says Niel Trautwein, a health policy expert at the National Association of Manufacturers. “Pain and suffering damages are inherently speculative in nature because they compensate for injuries that are hard to measure. It is a question of setting a more rational system.”

Many states have already enacted caps on some or all non-economic damages. The Congress is expected to consider later this year a medical malpractice bill that would limit non-economic damages in medical malpractice cases to $250,000.

But such limits do not fall equally on men and women, stress women’s groups. Since men generally earn more than women, they are likely to receive higher compensation in economic damages for the same injury. In determining future wage losses from an injury and thus the amount of economic compensation, juries and judges use wage projection data that rely on a person’s earning history. Women, the poor, the elderly, minorities and children receive less or no economic compensation because they typically earn less than white male adults. Moreover, women who work within the home and do not bring home pay — like Sherry Keller — do not have the right to collect for economic damages from loss of income if injured by medical malpractice or a faulty product. They are thus more likely to rely on compensation from non-economic damages to recover from or at least mitigate their losses.

Proponents of medical malpractice caps say women can be adequately compensated even with the limits on non-economic damages. “Setting a cap on non-economic damages is not really an issue for women,” says a representative from the American Medical Association, “because all of their economic damages are paid and they also can collect the quarter million dollars.”

An arbitrary limit of $250,000, however, is not adequate compensation in many cases, charge opponents of caps. “No amount of money can take away a person’s loss, but it can give them back their dignity and make their lives more comfortable after an injury,” says Geoff Boehm, legal director of the New York City-based Center for Justice & Democracy. “But to do so requires more than $250,000 in many cases. A wheelchair alone costs around $50,000.”

Compounding the problem, say women’s health advocates, is the targeting of obstetric/gynecological injuries for limits on non-economic damages. The “Healthy Mothers and Healthy Babies Access to Care Act” introduced last year by lead “tort reformer” Senator John Ensign, R-Nevada, called for a $250,000 non-economic damage cap for medical malpractice settlements involving pregnancy, delivery, and other obstetrical and gynecological care.

“This bill clearly discriminates against women and children by regulating only obstetrical and gynecological practices,” says Kim Gandy, president of the National Organization of Women (NOW). “Why should women be restricted in seeking fair compensation after being harmed while men retain their full legal protections?”

The Ob/gyn ploy

The “Healthy Mothers and Healthy Babies” Act may not pass Congress, but the Bush administration and “tort reform” advocates use the OB/GYN field as a leading example to make the case for limiting non-economic damages. They claim the compensation awards in these lawsuits limit women’s access to healthcare by driving up insurance premiums and discouraging doctors from practicing in this high-risk medical field.

The National Association of Manufacturer’s Trautwein says, “There is a great problem with access to obstetrics care. We really don’t see this [‘tort reform’] as being hostile to women. We see it as more rational scheme of compensation and a more affordable way for doctors to practice medicine.”

A national survey commissioned by the American College of Obstetricians and Gynecologists claims that one in seven of its members stopped practicing obstetrics specifically because of the high risk of liability claims.

But civil justice advocates say there is an insurance problem, not a jury problem. Rising insurance rates are driven not by an increase in awards in medical malpractice cases, which in fact have remained stable, they say, but by the cyclical nature of the insurance industry. Insurance companies make their money by investing premiums — when these investments go south, insurance premiums inevitably skyrocket, as the insurers look to make up lost income. By spring 2005, medical malpractice insurance rates have begun to stabilize, notes the Center for Justice & Democracy — equally in states with non-economic caps and those without.

Who gets punished?

As well as limiting non-economic damages in malpractice cases, industry lobby groups are working to legislate caps on punitive damages. Juries award punitive damages in addition to compensation for economic and non-economic damages in order to punish defendants that have behaved egregiously. Like non-economic damages, punitive awards are unpredictable — proponents say it is their uncertainty that forces industry to design safer products for consumers. If punitive damages are limited, companies frequently can simply incorporate the cost of paying some compensatory damages into the price of doing business — instead of designing products and undertaking precautions to avoid causing harm in the first place.

Juries have awarded large punitive damages in a number of cases involving women’s healthcare products. These awards have been important in meting out justice, getting dangerous products off the market and deterring future misconduct by other companies, say women’s advocates, and limiting punitive damages would open the door to more corporate abuses.

“Putting the consumer at risk and protecting the companies is a dangerous precedent to set,” says Judy Waxman of the National Women’s Law Center in Washington, D.C.

A 2001 report from Public Citizen’s Congress Watch, “Smoking Guns: Corporate Behavior and the Harmful Impact of a Punitive Damages Cap,” highlights how punitive damages have served to protect female patients and consumers:

Class discrimination

On February 17, 2005, Congress passed the Class Action Fairness Act, which will move almost all class action suits out of state courts and into the federal system. Federal courts have historically been very hostile to class actions, typically refusing to let them proceed.

The class action bill “will actually do away with these frivolous cases in the courts, but it is not going to stop a legitimate case from coming to court,” asserts Larry Fineran of the National Association of Manufacturers.

But civil justice advocates say there is every reason to expect federal courts’ traditional hostility to class actions to continue.

“The class action bill covers mass torts, so if a drug injures many people, the case will be thrown into the federal system and there could very well be knocked out of court,” says Joanne Doroshow of the Center for Justice and Democracy.

The consequence may be to deny many victims — and especially women — the effective right to seek compensation. Class actions are important because they enable plaintiffs to pool resources and make it cost-effective to file suits. In many circumstances, lawyers will not find it worthwhile to pursue complicated cases if they represent only one injured party — the potential recovery may not be worth the time and required monetary investment. This is especially so if that party is a woman who faces caps on what she can recover in non-economic damages or in punitive damages.

Thus, say defenders of the civil justice system, what is at stake in the “tort reform” controversy may be the constitutional right of individuals, especially women, to obtain a jury trial. Says Sherry Keller, “My government has no place negating my value as a human being and denying my right to a trial in front of a jury of my peers to determine what is fair compensation.”

As Multinational Monitor was going to press, a jury ruled against Sherry Keller, finding that, irrespective of the consequences, leaving a patient alone does not constitute malpractice. The ruling reiterates the reality that it is difficult for plaintiffs to prevail in the civil justice system. Keller is now filing an appeal.

THE STATES ACT ON THEIR OWN

While the U.S. Congress debates further limits on injured persons’ rights to sue wrongdoers, especially in medical malpractice cases, states have acted to drastically restrict victims’s rights. Among the many restrictions imposed are limits on the right to recover certain kinds of damages. More than two-thirds of states have enacted some kind of cap on victims’ right to recover damages.

Alabama: punitive damage cap
Alaska: caps on non-economic and punitive damages
Arkansas: punitive damage cap
Colorado: caps on non-economic and medical malpractice damages
Florida: caps on medical malpractice (non-economic) and punitive damages
Georgia: punitive damage cap
Hawaii: cap on non-economic damages
Idaho: caps on non-economic and punitive damages
Indiana: caps on medical malpractice and punitive damages
Kansas: caps on non-economic and punitive damages
Louisiana: cap on non-economic damages in medical malpractice cases
Maryland: cap on non-economic damages
Massachusetts: cap on non-economic damages in medical malpractice cases
Michigan: cap on non-economic damages in medical malpractice cases
Mississippi: caps on non-economic and punitive damages
Missouri: cap on non-economic damages in medical malpractice cases
Montana: caps on medical malpractice (non-economic) and punitive damages
Nebraska: cap on medical malpractice damages
Nevada: caps on medical malpractice (non-economic) and punitive damages
New Hampshire: punitive damages abolished
New Jersey: cap on punitive damages
New Mexico: cap on medical malpractice damages
North Carolina: cap on punitive damages
North Dakota: caps on medical malpractice (non-economic) and punitive damages
Ohio: caps on non-economic and punitive damages
Oklahoma: caps on medical malpractice (non-economic) and punitive damages
Oregon: no punitive damages against doctors for medical malpractice
Pennsylvania: cap on punitive damages in medical malpractice cases
Texas: caps on medical malpractice (non-economic) and punitive damages
Utah: cap on medical malpractice (non-economic) damages
Virginia: cap on punitive damages
Washington: cap on punitive damages
West Virginia: cap on non-economic damages in medical malpractice cases
Wisconsin: cap on non-economic damages in medical malpractice cases

Source: Center for Justice & Democracy

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Darshana Patel is a freelance writer in Washington, D.C

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