How Capping Medical Malpractice Awards Hurts Patients

In an article in Forbes magazine, Steve Cohen argues that none of the goals of tort reform that began in California under Ronald Reagan have come to pass. These goals included reducing the number of frivolous lawsuits, enhanced quality health care while controlling costs, and halting the tendency of doctors to abandon the practice of medicine and to lower their malpractice insurance costs.

Cohen begins his article with a story about a woman named Shannon Reilly. In 2002, Ms. Reilly was born with cerebral palsy because she did not receive enough oxygen before she was delivered. This can occur because of complications during pregnancy or medical error. But in Shannon’s case, there was clear medical error (i.e., negligence). Shannon will need medical care and therapy for the rest of her life, which will cost millions. Unable to afford her care, her parents sued the hospital. They won a verdict of $130 million that the jury felt would cover future healthcare costs for Shannon as well as past and future pain and suffering.

This raises the question: Should there really be a cap for medical malpractice cases? Should people like Shannon be limited to recovering less because we are concerned about doctors’ liability insurance? Or should a jury have the right to decide whether there was a mistake, and how much a person should be compensated for it?

According to Moore’s article, there are approximately 98,000 avoidable errors that result in death a year, and nearly 300,000 that result in injury. In spite of the comparatively low number of lawsuits brought a year, tort reformers defend malpractice caps on the basis that these lawsuits are causing health care costs to rise.

Tort reformers believe caps are necessary because the fear of being sued causes doctors to engage in something called “defensive medicine,” which involves ordering unnecessary—and costly—tests. Another reason tort reformers feel caps are necessary is to combat the rising costs of malpractice insurance for doctors. With caps in place Shannon Reilly may not have been able to receive the money to pay for the therapy she will need for the rest of her life, and the medical professionals may have never understood the gravity of their error.

If you have been injured, you should contact a personal injury attorney before negotiating with an insurance adjuster. Contact the Law Office of Ben Crittenden for a free consultation.

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