Congress Seeks To Short-circuit Malpractice Suits

February 19, 2003

The latest medical debacle at Duke Medical Center again raises the issue of capping damages.   The young girl, who desperately needed a heart and lung transplant, was given organs of a different blood type than her own.   A dreadful mistake, to say the least, but if Congress gets its way, such damages will be limited.

According to the Institute of Medicine, anywhere between 44,000 and 98,000 Americans die in hospitals across the country due to medical mistakes.   At the minimum number, that’s more than die in traffic accidents or from breast cancer.

While the vast majority of doctors are competent and deserving of our respect and admiration, a small number of them are killing us through incompetence and it’s time the medical profession cleaned up it’s own house.   I’ve talked to doctors and other medical professionals who whisper in the halls of hospitals the names of doctors they would never send their dog to.   Publicly turning these doctors in for known malfeasance sets the whistle-blowers up for lawsuits.  

There must be a better way to weed out bad doctors.   That, after all, is contributing more to the high cost of malpractice insurance than any lawsuits being filed.   Sure, there are frivolous lawsuits filed but most states have laws against such suits.   Lawyers who make a practice of clogging up the courts with silly suits face heavy fines or disbarment.   Judges overseeing malpractice cases also have the prerogative of lowering any excessive awards.   Those who aren’t properly monitoring these cases should be voted out.

Not to mention that the excessive awards that make the news, like the lady who spilled McDonald’s coffee in her lap, are usually drastically reduced.   In the McDonald’s case, the $3 million verdict that hit the headlines was reduced by the judge to $160,000 for compensatory damages and $482,000 in punitive damages.   As it turned out, McDonald’s had kept its coffee company-wide at temperatures that would cause third-degree burns down to the muscle within two to seven seconds.   This woman required skin grafts, 8 days in the hospital and 2 years of recovery.   Some 700 patrons had been burned before this case and McDonald’s refused to do anything about it, thus the punitive damage.

Most of the buzz has been around what is capped.   That seems to be the most ambiguous part.   The answer is different depending on who you talk to.   Most agree legislation would cap awards for pain and suffering at $250,000.   Punitive damages range from the equal amount of economic damages awarded to twice that amount.

Varying legislation is based on different states, which is the one point most are missing in this argument.   Several states like Mississippi and California have passed legislation to deal with malpractice problems.   The people in those states are better suited to decide what fits their own situation.   The cookie-cutter approach from Washington is the wrong way to go.   I’m a bit confused by Republicans who normally see the federal government as overbearing but are perfectly willing to allow it to plop its fat fanny in the middle of this issue.

I’m certainly not defending the trail lawyers.   In fact, I have no problem with capping their fees, within reason.   I’m looking at this problem from a logical point of view.   If I have the wrong leg amputated or receive the wrong heart and lungs, would I rather trust my fate to 535 congressmen and senators who have predetermined punitive damages or would I rather trust 12 jurors who hear every shred of evidence in my case before making a decision?

As imperfect as our jury system is, I’ll take my chances with them.