Last week, the New York Times ran an op-ed piece on ways to decrease the astronomical and unsustainable cost of healthcare, an approximated $2.6 trillion a year. Both liberals and conservatives have their own thoughts as to why the health care costs are so high and how they can be lowered. Conservatives hope to dampen costs with medical malpractice reform, one being to limit noneconomic damages juries can award in medical malpractice lawsuits. With less concern about being sued, doctors would cease to practice "defensive medicine", i.e. order fewer unnecessary tests/procedures for a patient, and health care costs would fall. Many myths surround this viewpoint. I will discuss three.

The first myth is that of "frivolous" medical malpractice lawsuits. As this theory goes, frivolous medical negligence cases are brought on with little merit, backed by greedy attorneys against hapless doctors who would prefer settling a case out of court rather than endure the litigation process.Learn more about why medical malpractice lawsuits are anything but frivolous from Chicago personal injury attorney Mitchell Lipkin:

The reality, in Illinois at least, is far different. Before a medical malpractice suit can even be filed against a doctor or hospital, a reviewing doctor, selected by plaintiff's attorney, has to read over the patient's records and write a report certifying that the defendant was negligent and injured the patient. The initial cost of obtaining a patient's medical records and having them reviewed can easily run to $1,500. While it's possible that the plaintiff's lawyer knows a "friendly" doctor who will certify a case as meritorious when it is not, I know of no one who would do so. Why? Because at the end of the day, that doctor will have to take the witness stand and explain to the jury why the defendant was negligent.

At Lipkin & Apter, and I suspect for the overwhelming percentage of other medical malpractice law firms, clients advance no costs. Costs are only recoverable when the case is successful. No law firm I know would be willing to advance costs for a medical malpractice case-- that can easily run to $50,000 or more--on a "frivolous" case. This reluctance is reinforced by the fact that the majority of medical malpractice cases- more than 60 percent- lose at trial. Moreover, insurance companies for doctors or hospitals fight these cases tooth and nail. They hire well-qualified attorneys to represent them and have access to an unlimited number of experts who will be glad to testify for them at trial. So the economic interests of the attorney preclude filing a frivolous suit.

The second myth is that juries aren't smart enough to understand medical testimony, and base their decision in a case more on feeling sorry for a seriously injured patient, than on the medical facts. Of course, this argument does not explain the point made above, that most medical malpractice cases lose. Juries do not take lightly their responsibilities and are most respectful of the medical profession. Unless presented with strong reasons to find a doctor liable for a patient's injuries, a jury won't.  Beyond being condescending, this myth does not explain why juries are qualified to sit in judgment in all other legal cases- from murder cases to complicated business transaction cases- but not in medical malpractice cases.  

A cap seeks to single out one class of defendant-- medical providers-- above all others and contravene the fundamental tenet that someone who wrongfully harms another should make that person whole again. Someone who runs a red light and injures a pedestrian will have no cap on the judgment against him. Why should a doctor who negligently injures a patient?

The third myth is that juries frequently award damages in excess of a patient's injuries and that non-economic elements of damages such as pain and suffering and disability are simply too vague and incapable of being standardized to allow a jury to award such damages. When discussing what limit or cap should be placed on non-economic damages, proponents frequently state $250,000. However, what about a child with a profound brain injury resulting from a doctor's failure to have delivered her earlier, as called for by applicable medical standards? Does $250,000 fairly compensate that child for a life that will never be fully lived? Or a young man who has no bowel, bladder or sexual function because a doctor failed to recognize an emergency condition in his spinal canal that called for immediate surgery?

As a medical malpractice lawyer, it might appear that I have ulterior motives to feeling the way I do. While it’s true that limiting noneconomic damages would limit my bottom line, working for my clients and their families who have suffered because of medical malpractice leaves no doubt in my mind that someone would willingly pay any amount of money NOT to have their condition. The unfortunate fact is that when doctors or hospitals negligently injure a patient, that person's life may be permanently and profoundly changed. It is the very antithesis of a "frivolous" case. Juries are more than capable of awarding non-economic damages, based on their experiences of life.  Caps harm the patient, who has already been harmed, and benefit the doctor (or hospital) which caused the harm. They should not be invoked.  

For more information on medical malpractice, or to schedule a free consultation to discuss your legal rights, please contact Lipkin & Apter today. While we won't sue doctors or hospitals simply for a bad result, we will fight for those whose lives have been disrupted because of a medical professional's negligence.