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Argument Against Tort Reform

Medical Malpractice: Myths and Realities
John Conyers, Jr. (D-MI)
Ranking Member, House Judiciary Committee
(Published in Roll Call November 13, 1995)

The 104th Congress has devoted an increasing amount of attention to the issue of medical malpractice and health care liability. Unfortunately, the legislative debate -- which has proceeded in the complete absence of any hearings or Committee consideration -- has been characterized by an unusually high degree of misinformation, and little effort has been made to understand the role the state medical malpractice laws play in our health care system. Although many would seek to characterize the argument as one between the trial lawyers and the AMA, lost in that simplistic scenario is the fact that if new federal limitations on access to justice are enacted, the average American health care consumer will pay the price in the form of uncompensated medical injuries and lower quality health care.

Medical malpractice is a widespread and serious problem in our society. Studies have established that it is the third leading cause of preventable death, second only to those deaths associated with cigarette smoking and alcohol abuse. More than 1.3 million hospitalized Americans, or nearly 1 in 25, are injured annually by medical treatment, and about 100,000 such patients, or 1 in 400, die each year as a direct result of such preventable injuries.

Against this backdrop, the Republicans are now seeking to radically restructure the traditional state medical malpractice compensation system. Both the House product liability and Medicare bills set an absolute limit of $250,000 -- with no adjustment for future inflation -- for non-economic damages in medical malpractice cases, whether brought in state or federal court. The bills would also cap punitive damage awards in all medical malpractice cases at the greater of $250,000 or three times economic damages. These proposals would decimate a state tort law system which has traditionally offered us the least regulatory means of ensuring that minimum standards of health care are observed and innocent victims of malpractice are compensated. The concept of unilaterally preempting state law is particularly puzzling coming from a party whose rhetoric so strongly purports to favor state rights.

Such arbitrary caps on non-economic damages unfairly punish those innocent victims who suffer the most debilitating injuries and are most in need of financial protection and security. While more difficult to scientifically measure, non-economic damages compensate victims for real losses -- such as loss of sight, disfigurement, inability to bear children, incontinence, inability to feed or bathe oneself, or loss of a limb -- that cannot be accounted for through lost wages or other economic damages.

While proponents of damage limitations would have us believe the medical malpractice laws create a system characterized by widespread abusive litigation resulting in frequent "lottery award" payoffs, the real story is markedly different. A recent Duke University survey of 2,000 medical malpractice cases found that the average court award was only $36,000. Moreover, despite the prevalence of medical misconduct, strikingly few medical malpractice liability actions are initiated by injured victims, and only a small fraction of these cases result in a court award to the victim. A landmark Harvard study found that less than 2 percent of the victims of medical malpractice ever bring a medical malpractice claim. Another recent study found that only ten percent of medical malpractice cases reach the jury, and of these, the plaintiff prevails in only one out of five cases.

One of the principal problems with arbitrary limitations on non-economic damages is that they have a disproportionately negative impact on women, children, and senior citizens. Since these groups generally earn less wages, a greater proportion of their losses is likely to be non-economic. (A recent study of damage awards found that women realize an average total award of about 25% less than men). Under the Republican proposals, a middle-aged adult who loses his job could seek full compensation, while a child or a senior who loses a limb or is forced to bear excruciating pain for the remainder of his or her life would face arbitrary new limits on their ability to seek compensation. Similarly, a corporate CEO with a seven figure salary is entitled to collect millions of dollars in damages in lost wages resulting from medical misconduct, but a homemaker who loses her reproductive capacity as a result of medical malpractice would face a $250,000 limitation on her damages. Where is the equity in these situations?

The Republican medical malpractice proposals would also immunize manufacturers of FDA-approved products from any possible award of punitive damages. This so-called "FDA defense" completely forecloses the possibility of punitive damages for defective products -- even if the manufacturer has clear evidence of the dangers of a product. This will undoubtedly have a disproportionate impact on the ability of women to recover damages, since so many cases involving large punitive damage awards pertain to defective medical products placed inside women's bodies. We need look no further than the Dalkon Shield, Cooper 7-IUD, high-estrogen birth control pills, and high absorbency tampons linked to toxic shock syndrome to find recent examples of FDA-approved products which caused widespread injuries to female consumers and were taken off the market only after large punitive damage claims were awarded.

The proposed new limitations on damage awards will also dramatically reduce the deterrent effect which results from the state medical malpractice system. The threat of medical malpractice is one of the few non-regulatory means available to ferret out poorly trained and negligent doctors and other health care providers. Earlier this year we learned of a surgeon at Tampa University's Community Hospital who mistakenly amputated the wrong lower leg, condemning the patient to a life without any legs. Just two weeks later, at the same hospital, a patient was killed when a therapist mistakenly disconnected his ventilator. In the last several months we have also learned of doctors falling asleep during operations, massive chemotherapy overdoses, and even a case where a physician negligently cut off the wrong breast of a cancer patient during a mastectomy. Is this the type of medical behavior we want to shield from liability?

Although the stated rationale of these radical limitations on damage awards is that they will result in overall savings to the health care system, the bulk of quantitative data contradicts this assertion. Using data derived from a 1992 General Accounting Office Study, the American Bar Association's Special Committee on Medical Professional Liability found that state liability law changes, most notably caps on non-economic damages, have not had any measurable impact on overall health care costs. Other independent studies have confirmed that states which have enacted damage caps have generally not experienced reduced health care costs. For example, in the first 12 years following California's enactment of a $250,000 cap on non-economic damages, health care premiums were found to have increased by 191 percent, and the State's overall rankings in terms of health care costs worsened. Similarly, a General Accounting Office study concerning the impact of specific tort changes on medical malpractice reveals that claims and insurance costs continued to rise, notwithstanding State-adopted limits on victims' access to the courts.

Even the complete elimination of malpractice costs would provide only negligible savings to the health care system. According to separate reviews by the Department of Health and Human Services and the Congressional Budget Office, the total amount of all liability premiums paid in the United States represents less than 1 percent of the Nation's health care costs. And factoring in the costs of so-called "defensive medicine" would not result in any significant additional savings to the health care system, according to both the CBO and the Congressional Office of Technology Assessment. In fact, such preventive or defensive medicine may actually reduce overall medical costs by encouraging safer medical care.

It is also particularly unfortunate that so little attention has been paid by Congress to proposals which offer the possibility of streamlining the medical malpractice system. For example, a number of States have adopted specific procedures for malpractice cases to supplement the trial system with a less formal process known as "alternative dispute resolution." States have also experimented with the idea of requiring a claimant to file an affidavit of merit prior to bringing a medical malpractice lawsuit in an effort to ensure that meritorious cases are fully adjudicated on a timely basis, while preventing non-meritorious cases from clogging the legal system. Another promising concept relates to the development of "medical practice guidelines" designed to minimize the amount of litigation resources needed to establish the appropriate "standard of care" in medical malpractice cases. If Congress were really serious about improving the medical malpractice system, we could begin by seeking to expand these innovative programs.

Instead of conducting a serious debate concerning the efficacy of the State medical malpractice and health care liability laws, the House Republicans have chosen to adopt a series of deceptive quick fixes intended to placate one side of the debate -- health care providers -- while totally ignoring the needs of innocent victims. Imposing arbitrary new federal limits on medical malpractice actions will serve only to insulate the minority of incompetent and negligent health care providers from the consequences of their actions while yielding little financial savings to the health care system. The ultimate victim will be the American public.

This information came from a
US House online article.

*** Any law, statute, regulation or other precedent is subject to change at any time ***

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