Last week, doctors from around the state held a rally to urge passage of a bill to impose a maximum $250,000 limit for jury awards for pain and suffering of victims in medical malpractice cases. As a practicing attorney, I believe that basic points are being ignored or misrepresented in the debate as to whether Maine needs additional medical malpractice reform.
Patients need to be protected.
Between 44,000 and 98,000 Americans die in hospitals each year due to preventable medical errors. Deaths due to medical errors are the eighth-leading cause of death in America. More Americans die as a result of medical errors alone than die as a result of workplace injuries. The annual cost to society for medical errors in hospitals is estimated to be between $17 billion and $29 billion.
Maine already had medical malpractice reform in the late 1980s.
In 1986, the Maine Health & Security Act was enacted by the Legislature. It required all malpractice claims go through a pre-litigation screening panel system.
The physicians and health providers in that system have the benefit of confidential proceedings. The screening panel system adds another year to two of legal obstacles and expenses that a malpractice patient and his or her attorney must deal with before even filing a complaint in Superior Court.
As a result Maine does not have a malpractice problem like some other states. In fact, the net effect of the Maine system is that patients and attorneys are discouraged from bringing many meritorious claims due to the great time and expense required by the process.
3. Maine does not have a medical malpractice jury award problem.
Maine people tend to exercise common sense and be financially conservative. As a result, when the Maine jury determines the value of a medical negligence claim that valuation tends to be a fair, yet conservative, one. If a jury award is deemed excessive by a trial judge, that judge can and will reduce it and if the responsible physician or medical provider is still unhappy with the result they may appeal the matter for review to the Maine Supreme Court. Thus, layers of procedural safeguards exist in the Maine medical malpractice system to check and balance jury decisions.
4. Medical malpractice premiums are not driven by claims or payouts.
Medical malpractice premiums charged do not track losses paid, but instead rise and fall in concert with the state of the economy and the insurance company’s investments. When the economy is booming and investment returns are high, companies maintain premiums at modest levels and compete for market share. However, when the economy falters and the interest rates fall, companies increase premiums to boost their bottom line.
5. Caps don’t improve malpractice premiums.
The insurance industry has gone on record saying it has not cut and does not plan to cut insurance premiums because of tort restrictions. “The insurance industry never promised that tort reform would achieve specific premium savings,” the American Insurance Association said in March 2002.
6. Caps on pain and suffering hurt the most injured people the most.
Caps discriminate against patients most seriously injured by malpractice – children, women, seniors and minorities – while enriching insurance companies that cause premiums to rise because of their own bad investment decisions and investments. Juries, not a one-size-fits-all arbitrary cap determined by insurers, should decide what medical malpractice victims receive in compensation.
When children, women, seniors and minorities win malpractice lawsuits much of their compensation is often made up of non-economic damages that are taken away by caps. For example, a child who may live for 70 years with a brain damage or other catastrophically debilitating injury, has real and serious injury. The cost of medical errors and the devastation caused by those errors should be borne by those who cause the injuries and those who make a profit insuring health care providers. Insult should not be added to injury by having the innocent victim of malpractice bear the financial burden of the devastation caused by medical negligence.
7. Attorneys fees are already regulated.
Some local proponents of medical malpractice reform have falsely suggested that injured patients receive less than the lion’s share of a malpractice recovery when there is one. In Maine, contingency fees for medical negligence claims have been set by the Legislature and vary between 20 percent and 33.33 percent of the amount recovered. Thus the lion’s share of any malpractice recovery does go to the injured person.
The contingency system is called the key to the courtroom because it allows injured people to seek compensation in court without having to pay their lawyer first. Attempts at further fee caps are one-sided, limiting the rights of the injured and making it easier for well-financed medical providers and their insurers to force meager settlements.
8. The answer is to improve medical care and insurance company regulation.
Malpractice payouts by physicians and their insurers amounted to less than 1 percent of the country’s overall health cost in 2001, according to the National Practitioner Data Bank. The infrastructure of managed care as well as updating hospital practices can go a long way toward preventing medical negligence.
Also, reforming insurance company practices will control how much insurers are allowed to charge doctors for insurance. Currently these companies are free to set their own rates based on their own, often self-serving estimates. Protecting patients from medical errors is a matter of reducing medical errors rather than cutting the rights of injured and innocent victims of those medical mistakes.
John McArdle is a Maine lawyer with an office in Portland. Since 1987 he has represented patients injured as a result of medical negligence and other complex personal injury matters.
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