Capping Malpractice Damage Awards

Sure, the malpractice system is broken.  And there are lots of suboptimal doctors out there.

I have told some what the correct diagnosis is and they have ignored me.  Some are too busy to take phone calls from me.  Institutions have refused to order tests that I’ve requested.

On the other hand, I have been lectured about the necessity for “cover your ass” medicine.  I could not practice it if I wanted to.  Nobody would pay for it.  In my specialty, I am always told to look for ways to cut costs while some patients cry to me they cannot afford their medicine.  We do our best.

Oh, how often I have told staffs “M.D.” stands for “make do.”

I am taking my stand in this issue of how to proceed with the controversial issue of caps on malpractice damages in a way that my professional colleagues will not like.  We have to protect patients.

I am firmly against caps on damages from malpractice lawsuits, and here is why.

Putting caps on damages simply does not lower physicians’ malpractice insurance premiums.  The article cited above lists several independent sources that have made financial studies.  Insurance premiums simply keep going up no matter what anybody does.  This has something to do with supply and demand in the insurance business – and perhaps some corporate greed.

I have always had trouble with both malpractice and health insurance companies.  They are like extra participants in the room while doctor and patient are trying to plan treatment.  They say what is appropriate and what is not — adding cost, perhaps, but not adding value.  In physicians, they have found a golden calf that they will keep fattening and fattening according to their inclinations.

It cannot be denied that there are patients who file frivolous lawsuits.  I have seen those who have tasted the lowest depths of poverty and will say or do anything to get money.  The courts — if not their expert physicians — ought to be able to identify them.  They can be sent for whatever benefits they can get from our welfare system and offered a minimal livelihood.  But they should not be offered a windfall that is neither ethically nor legally merited.  The watchdog here should be the legal system.

There are patients — or their first degree relatives — who have legitimate claims far beyond an arbitrary cap.  For example, when a child has suffered a problem caused by negligence during delivery or pre-or-postnatal care (believe it or not, many of “Jerry’s Kids” are not birth defects, but negligent or incompetent doctors/nurses/dulas), lifetime mechanical support may cost far more than arbitrary caps.  Perhaps may cost even more than standard disability.

The rights of a wronged patient should come first.  If not, what good is America?

Sure, I have known doctors who have survived a single malpractice case.  In general, they continue to practice.  For the most part, they have been decent folks capable of human error. Sometimes the doctor is not that bad — only weak — performing some kind of procedure because pressured to do so by an institution.  Sometimes the problem is just bad luck, but it can also be gross incompetence.  Sometimes the doctor should pay.  Sometimes, maybe the doctor should leave the profession.

There aren’t that many, I suspect.  Probably more who feel like victims, but are not.

More doctors commit suicide than any other profession.  Of the general population, 1-2% are likely to die by their own hand.  Of physicians, it’s 2-4%.  There is about an equal amount of males and females.  In the general population, males largely predominate.  I can say from personal experience that the multiple pressures of a female physician may account for at least some of this.

The truth of the matter is that all physicians signed on for this gig, under considerable pressure and with considerable competition. We knew that we would hold life and death in the palms of our hands.  If we weren’t ready to accept that risk, we should not be here.

People wronged by the practice of bad medicine should get their costs — or those of their family member — covered.  But caps are not the answer.

Regulating the insurance profession might be an answer.  However, they are the big moneyed interests in this picture, so nobody talks about them.

As a doctor, I would love to lower malpractice premiums.  The reality, however, is that caps simply do not achieve this.