I don’t doubt for a minute that plaintiff attorneys could devise strategies for inflating economic damages when confronted with caps on noneconomic damages. Nor do I doubt that juries would respond to a sympathetic plaintiff by willfully blurring the distinction between economic and noneconomic damages, in order to achieve what they regard as a just outcome.
In addition to the two ways in which the article says legislatures might respond to this phenomenon — either place caps on total compensation, or give up on caps altogether — there is another way they could go: establish special medical liability courts, which would operate like other specialized administrative courts dedicated to specific areas of law (e.g., bankruptcy). They would be presided over by specially trained judges, use certified, court-appointed expert witnesses, eschew juries, and require judges to explain their decisions in the form of written opinions.
After reading this article, that option looks increasingly attractive to me.
Kathy, like most people, you’re not picking up on the subtle differences in words. It’s saying that the awards vary by the extent of the injuries, which invokes sympathy…it does not say that it varies by the extent of the negligence or lack thereof.
There’s also yet another method to mitigate med mal suits and awards — enact serious risk management changes to prevent malpractice to begin with. As risk management professionals, maybe the medical malpractice insurance industry can take a harder statistical look at the types of conditions that can tend to drive actual malpractice (understaffed hospitals, outdated information tracking of critical health issues, etc.) and add those to their UW guidelines. I think trying to smack caps on damage awards is a misplaced bandaid, especially since I’ve seen several studies that would indicate there isn’t really a runaway jury award problem so much as an insurance/reinsurance and medical mistakes problem.
Anyway, my experience is in property/casualty rather than health, but I think many of the same principles could apply here. As members of the insurance industry, we should certainly do what we can to defend our policies and policyholders in court. However, I’m getting back on my “return to the basic principles of risk management to mitigate potential liabilities” soapbox on this one — let’s manage our risk first, THEN see if that doesn’t bring our loss ratios closer in-line.
I think a bigger concern than too many big cases is too many marginal-merit cases. The average verdict is a small fraction of the 250K cap already … and cases under 250K burden the system, while they do only modest good to a plaintiff – and they pay the lawyer very little for her or his years of work.
The president is almost as indignant at “frivolous” (i.e. worthless) malpractice cases as he is at big (i.e. worthy) malpractice cases.
He may have a point: why do we want to cap malpractice cases (that is, hit the worthiest victims the hardest) while we do the opposite in auto cases (that is, relegate smaller injuries to the no-fault system, with no “non-economic” award at all)? Maybe there should be a minimum of 250K, not a maximum, in malpractice cases!
As a attorney for malpractice victims, I may have a duty to my client to argue that their case fits the criteria for an award in whatever way applies. But that’s nothing new … if a “creative” economic-damages argument was available, I’d have been malpracticing if I wasn’t already making it. That is, so long as it wasn’t duplicative.
Juries abhor “double-dipping” as much as they want to “do the right thing”. So they may be open to re-characterizing an element of the injury, so as to make it compensable. But I can’t create an injury where there was none before, and even if I did, the jury would likely turn against me and the victim entirely.
In some states, the malpractice insurance industry has lost a lot of money – but mostly due to poor asset management (investments, etc). That’s why in other states it’s been so consistently profitable, regardless of whether any caps exist.
In short, the topic is just too complex for a simple, nationwide solution. Insurance is typically a matter of state law and regulation. I think the feds should simply back off the entire issue.
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Gee, what a shock. It ain’t the lawyers and the lack of caps after all–it’s the actual *malpractice*!!!! Who knew?
I don’t doubt for a minute that plaintiff attorneys could devise strategies for inflating economic damages when confronted with caps on noneconomic damages. Nor do I doubt that juries would respond to a sympathetic plaintiff by willfully blurring the distinction between economic and noneconomic damages, in order to achieve what they regard as a just outcome.
In addition to the two ways in which the article says legislatures might respond to this phenomenon — either place caps on total compensation, or give up on caps altogether — there is another way they could go: establish special medical liability courts, which would operate like other specialized administrative courts dedicated to specific areas of law (e.g., bankruptcy). They would be presided over by specially trained judges, use certified, court-appointed expert witnesses, eschew juries, and require judges to explain their decisions in the form of written opinions.
After reading this article, that option looks increasingly attractive to me.
Kathy, like most people, you’re not picking up on the subtle differences in words. It’s saying that the awards vary by the extent of the injuries, which invokes sympathy…it does not say that it varies by the extent of the negligence or lack thereof.
There’s also yet another method to mitigate med mal suits and awards — enact serious risk management changes to prevent malpractice to begin with. As risk management professionals, maybe the medical malpractice insurance industry can take a harder statistical look at the types of conditions that can tend to drive actual malpractice (understaffed hospitals, outdated information tracking of critical health issues, etc.) and add those to their UW guidelines. I think trying to smack caps on damage awards is a misplaced bandaid, especially since I’ve seen several studies that would indicate there isn’t really a runaway jury award problem so much as an insurance/reinsurance and medical mistakes problem.
Anyway, my experience is in property/casualty rather than health, but I think many of the same principles could apply here. As members of the insurance industry, we should certainly do what we can to defend our policies and policyholders in court. However, I’m getting back on my “return to the basic principles of risk management to mitigate potential liabilities” soapbox on this one — let’s manage our risk first, THEN see if that doesn’t bring our loss ratios closer in-line.
Hear hear Bob & Florida Product Analyst!
I think a bigger concern than too many big cases is too many marginal-merit cases. The average verdict is a small fraction of the 250K cap already … and cases under 250K burden the system, while they do only modest good to a plaintiff – and they pay the lawyer very little for her or his years of work.
The president is almost as indignant at “frivolous” (i.e. worthless) malpractice cases as he is at big (i.e. worthy) malpractice cases.
He may have a point: why do we want to cap malpractice cases (that is, hit the worthiest victims the hardest) while we do the opposite in auto cases (that is, relegate smaller injuries to the no-fault system, with no “non-economic” award at all)? Maybe there should be a minimum of 250K, not a maximum, in malpractice cases!
As a attorney for malpractice victims, I may have a duty to my client to argue that their case fits the criteria for an award in whatever way applies. But that’s nothing new … if a “creative” economic-damages argument was available, I’d have been malpracticing if I wasn’t already making it. That is, so long as it wasn’t duplicative.
Juries abhor “double-dipping” as much as they want to “do the right thing”. So they may be open to re-characterizing an element of the injury, so as to make it compensable. But I can’t create an injury where there was none before, and even if I did, the jury would likely turn against me and the victim entirely.
In some states, the malpractice insurance industry has lost a lot of money – but mostly due to poor asset management (investments, etc). That’s why in other states it’s been so consistently profitable, regardless of whether any caps exist.
In short, the topic is just too complex for a simple, nationwide solution. Insurance is typically a matter of state law and regulation. I think the feds should simply back off the entire issue.
Words of crap