Why Not Cap Malpractice Premiums or Insurance Company Profits Rather Than Victim Awards?

Representative Phil Gingrey has introduced legislation "to limit medical malpractice awards, arguing that such cases are often frivolous." There is considerable debate as to whether or not medical malpractice awards have any appreciable effect upon national health care costs and the extent to which "frivolous" claims contribute to that cost. But for the purpose of this discussion I am prepared to accept that there are frivolous suits and that they add to the overall cost. Under what other circumstances would we punish persons who have legitimate claims because others have filed frivolous ones? Do we reduce Medicare payments to honest doctors because others have made fraudulent claims? I suspect that Medicare fraud claims both in number and amount exceed frivolous malpractice claims a thousand fold.

The medical profession should be reminded that no medical malpractice case is begun or survives without one of its own members confirming that the defendant doctor or hospital is guilty of malpractice. Lawyers do not make those decisions; doctors do.

As to lawyers, Dr. Gingrey also argues that the system "allows law firms to reap huge percentages of rewards instead of the injured parties who need them the most." If that is truly a concern of the legislation, here is an easy answer to that: Require that the carrier (the doctor) pay the victim's legal fees! Then the victim will receive full recovery. It is difficult to understand how reducing the lawyers fees will, in turn, reduce the amount of awards, since the fee is predicated upon the amount of the award. It likewise merely seems to be a way to punish and discourage lawyers from bringing such suits. (Incidentally, who pays the lawyers for all of those suits that result in judgments for the defendant-doctor? They cannot all be frivolous.)

I recognize that it is an undisputed fact that doctors are giving up or changing the nature of their practice due to rising malpractice insurance premiums. But to me the idea of punishing those with legitimate claims and reducing the awards they would otherwise receive hardly seems a fair way to address the problem. The courts have a mechanism for dealing with excessive verdicts that has the merit of deciding them on a case-by-case basis predicated upon the evidence rather than some arbitrary cap. Better to place a cap on malpractice premiums and require the carriers to justify increases rather than reduce the compensation of those who have been injured. Of the three involved, the victim of malpractice, the doctor or hospital guilty of malpractice and the carrier insuring that guilty doctor or hospital, the victim should not be the first, but rather the last, to be punished.