SEDONA, Ariz. – The idea of capping the non-economic damage awards that medical malpractice defendants owe their victims is currently the most popular reform suggested for the civil justice system. It also is the cruelest and most illogical idea to come along in decades.

A cap of $250,000 on such awards, to be imposed by Congress on state courts, has been the AMA’s top legislative priority, lobbied for by insurance companies, and the centerpiece of President Bush’s tort reforms. It was approved by the House but died last month in the Senate. Bill Frist, the Republican Senate leader, says, “It’ll be back.”

Many in Washington are fond of insisting that people take responsibility for their actions and not try to shift the cost of their mistakes onto someone else. Yet that is exactly what caps do: shift the cost of harm from the harm-doers to their innocent victims.

Traditional law requires health-care providers found responsible for injuring a patient to take on the entire burden created for their victim, including medical expenses caused by their negligence and lost earnings from the patient’s inability to work.

What about the patient’s pain, disfigurement, disability and other suffering?

Until now, the law has required that these also be fully compensated. These are termed “non-economic” losses not because they have no value but because they are hard to put a price on. And they are hard to put a price on simply because we have no markets for them.

The only reason we know the price of a prostatectomy or a Picasso is that markets exist where those are bought and sold. If we had markets where the ability to breathe, reproduce or walk were bought and sold, those too would become easily quantifiable losses.

That we cannot check eBay to see what vision is going for these days does not mean people do not value their sight. Ironically, no one benefits more than doctors from the high value we place on the “non-economic” aspects of our lives. Doctors are generously rewarded precisely because we value the restoration of function and relief from suffering so much.

But when doctors themselves are the cause of the harm, they suddenly argue that those losses have little value.

The president of the Pennsylvania Medical Society insists: “We do not believe that you can ever put a price on the pain and suffering and, therefore, we need to cap that pain and suffering.” According to the supporters of caps, none of those things, or all of them together, could be worth more than $250,000.Would you sell your hands for that?

Caps are cruel in another way. Perversely, they permit full compensation of relatively minor injuries – which fall within the cap -but drastically cut compensation in direct proportion to the increasing severity of the injury. By what logic should those who have been most catastrophically harmed be the ones required to contribute most to help out those who caused the harm?

Caps will not solve the problem of awards out of proportion to the harm to be compensated. They make that problem far worse. Better solutions, such as giving juries and judges guidelines about the statistical distributions of awards for similar injuries, have been tested and would be more effective and fair to all concerned.

Caps also do nothing to solve the serious underlying problem of medical malpractice itself, which is the single greatest cause of accidental injury and death in the United States. Nothing else comes close.

Yet only a fraction of those injuries and deaths result in compensation through a lawsuit or other claim. If anything, caps will make this most serious problem worse.

By placing more of those costs of error on the victims, caps undermine the motivation to find ways to reduce medical errors in the first place, insuring that there will be even more victims in the future.

Michael J. Saks is professor of law and professor of psychology at Arizona State University, and co-author of “Modern Scientific Evidence: The Law and Science of Expert Testimony.”

Readers may write to him at ASU College of Law, P.O. Box 877906, Tempe, Ariz. 85287, or e-mail him at saksasu.edu.

This essay is available to Knight Ridder/Tribune News Service subscribers. Knight Ridder/Tribune did not subsidize the writing of this column; the opinions are those of the writer and do not necessarily represent the views of Knight Ridder/Tribune or its editors.

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(c) 2003, Michael J. Saks

Distributed by Knight Ridder/Tribune Information Services

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