Protecting doctors and their patients

Across the nation, the health care debate is focusing less on health and more on the requisite amount of care doctors should be required to take. In Washington, President George W. Bush argued during his State of the Union address “no one has ever been healed by a frivolous lawsuit.” In New Jersey, doctors stopped working to protest high insurance premiums. In Florida and Mississippi, doctors stayed away from work for two days to call attention to the “major crisis.” Missing in the national discourse, however, is the underlying reality: Medical malpractice awards are actual awards for actual damages suffered. As legislators once again consider tort reform, they must bear in mind the full realities of the situation.

Nearly always the contest is presented as doctors looking after the public interest on one hand and plaintiff’s attorneys destroying the system on the other. But this dichotomy fails for two reasons: plaintiff’s attorneys look out for the interest of injured plaintiffs and lawsuits represent legitimate injuries that have been vetted by the judicial process.

The media is awash with tales of medical malpractice at the time of injury. CNN reported that Wayne Portch lost both of his legs and four fingers after doctors misdiagnosed one of his injuries. Two weeks ago, the Minneapolis media broke the news of Linda McDougal, who unnecessarily had both of her breasts removed because of a false diagnosis that she had cancer. Headlines such as these play on the heartstrings of the public. Lumped into the anonymous plaintiff class at the time of litigation, however, Portch and McDougal become the wrong-doers, driving up the cost of medicine.

Any malpractice award has either been arrived via settlement or the judicial process. Frequently these cases are characterized as irrational amounts awarded by overly-sympathetic juries. However, most cases do not make it as far as trial but rather are settled after the cross-filing of preliminary motions. The cases that do go to trial are subject to judicial review. Under rules of civil procedure, any damages awarded in a case are subject to reduction by the judge. If the judge exercises this power, the plaintiffs have the option of accepting the reduced amount or starting trial anew.

Even if actual damages serve a purpose, some argue, punitive damages should be capped as unreasonable and subject to abuse. Actual damages are supposed to represent the value of damages suffered by the plaintiff. Punitive damages serve the purpose of deterring knowingly bad conduct. To serve that purpose they must be significant from the perspective of the defendant. If malpractice injuries are items simply written off as part of the cost of doing business, there is little incentive to protect patients. To cap punitive damages across the board will result in only meaningful punitive damages, and hence a change of conduct, in operations of small size.

This is not to say that all medical malpractice claims have merit. However, as tort reform again becomes a favored matter for legislation, bear in mind that legislation paints with a broad brush whereas litigation deals with the particulars of each situation. The judicial process already has in place numerous safeguards to avoid frivolous awards, medical malpractice suits or otherwise. Before Congress acts to unilaterally limit or deny plaintiffs their just damages for unjust injuries, it should consider the full variety of interests being served.

In his State of the Union address, Bush said the country needed to address, “one of the prime causes of (health care) cost.” What the country needs, however, is to view injured individuals subjectively and not merely as a line item on a financial statement. After the rage and the ink over doctors’ mistakes subsides, the injured patient is left with their reduced life. When fashioning tort reform, it is important to bear in mind that doctors are not the only injured parties in medical malpractice.