seebs

I'd want to know how many people have been sued and lost, or ideally, how many were actually guilty of malpractice. The existence of suits doesn't prove malpractice...

Barbarossa

My understanding is that punitive awards (the kind that "tort reform" measures generally try to limit) are not covered under medical malpractice policies.

If this is true, how would these caps have any effect on insurance costs for doctors?

Happy Wonderer

Limiting punitive awards (which are disallowed in my state) will not help OBGYNs at all. Juries are pretty conservative for noneconomic damages anyway, so the punitive damages are a red herring. The cases where you can get good punitive damages are the cases that should have large punitive damages. I don't know why people think that getting into a jury suddenly makes people lose all reason.

The problem for an OBGYN is that economic and actual damages are based upon lifetime. If a doctor screws up and causes Grandma some harm that requires $5000 a year in medical expenses (amazing how circular the system is...) that may be at most 25K. Cause a kid the same harm and you are looking at 400K. That is just damages that everybody probably agrees that the doctor should be liable for -- no different than if I hit your car and you have to get a new fender.

Grandma doesn't have a job, so there are no economic losses to consider. For a kid, you have to consider the economic losses of somebody working full time in a good job, which can be well over $1M. This may or may not be fair, as you don't know at trial whether the kid will ever be able to hold a job.

Life is expensive. It may be true that there are cases where we don't absolutely know where the harm was caused, but cases like that are discounted. In the absence of malice or severe incompetence juries generally have the same reluctance to award the jackpot as you do, and given that juries are usually lower-to-middle income earners what they consider a jackpot may be a hell of a lot less than what you do.

Now the amount that lawyers charge could be a good subject for discussion...

hw

Matt the Medic

As someone who works in medicine, and aspires to be a clinician (most likely NP though, MD isn't what it used to be!) I think one of the biggest problems as identified by many doctors I work with and I concur with is that malpractice and/or punitive awards are often decided by a typical 'impartial' jury. A jury that usually knows nothing of standards such as JACHO and HIPPA and all it takes is a decent lawyer to convince the jury a doctor is guilty of malpractice, whether or not he is actually committing malpractice based on the scope of his practice and what current guidelines for treatment are. I'd argue that such a civil trial is not being tried by your peers, because the jury would need to have special training and knowledge in the field to objectively try. I'm not sure what the solution is, as having an all-doctor/medical proffesional jury may be tipping the bias to the defense; which isn't neccessarilly bad considering it should be the plaintiff's job to prove the affirmative coming into the case, not the defendent's job to prove a negative (as much as the media wants you to believe it is).

And with that, I'm off to the hospital.

Loren Pechtel

Tort reform tries to limit non-economic damages, whether they be punative or merely pain and suffering.

Loren Pechtel

Yeah, it's a problem.

I've long favored going to a system of professional jurors. Not specifically doctors for medical issues, but a B.S. level degree that's a jack-of-all-trades. Make juror pay a reasonable amount for someone with a 4-year degree.

Overall I suspect it would save money as the lawyers wouldn't waste so much time explaining things. (However, it would transfer money from the lawyers and expert witnesses to the jurors. Two oxes get gored but there's nobody on the other side to fight back.)

I also think we need to redefine the standard. The problem with too many malpractice cases is that there simply isn't the evidence to decide. I think such ambigious cases should go to the defense.

Barbarossa

Er--you mean JCAHO* and HIPAA,** right?


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*Joint Commission on Accreditation of Healthcare Organizations
**Health Insurance Portability and Accountability Act of 1996

lisarea

Minor correction: In the case of the current, national tort reform measure being bandied about, this is true, but it is not true of all tort reform.

Until very recently (I think around last June or something), Colorado had a cap on total damages, economic and non-economic. No kidding. Seriously, I kept thinking I must have misunderstood that, and I'd have to check my facts every two weeks or so because it freaked me out so much. It was true, though, and every time I see these claims that tort reform only caps noneconomic damages or that nobody is arguing that economic damages need to be capped, it makes me turn into Yosemite Sam (which, oddly enough, causes me about $250,000 worth of pain and suffering).

BTW, this is probably a really dumb question that I should know the answer to, but does anyone have a comprehensive definition of what damages are considered economic vs. non-economic? Are potential future earnings not based on current employment considered economic or noneconomic? A college student is brain damaged and will be unable to work. I'm laid off one day, and the next day, a UPS truck crashes through my wall and renders me unemployable. Does the fact that the injured party is currently unemployed that minute render future earnings non-economic? What about people with fluctuating earnings? Temporary jobs?

Loren Pechtel

WTF?? Sounds like some lawyer managed to slip something through to break the measure.

I would think that in both cases there are economic damages. I don't think the fact that you are temporarily unemployed has anything to do with it.

Barbarossa

From the 'Lectric Law Library: