Capping malpractice awards is a solution desperately in search of a problem that doesn’t exist in Maine.

Legislation has been introduced in Augusta to cap jury awards for pain and suffering in medical malpractice lawsuits at $250,000. The effort is similar to proposals on the national level and so are the arguments in its favor.

Proponents of capping awards say that frivolous malpractice suits and high insurance premiums are driving up the cost of health care and forcing good doctors out of the profession. Advocates say that rural areas are facing a crisis of access because doctors in high-risk specialties – such as obstetrics – can’t afford to work in poorer areas.

It’s a compelling case. But there’s little or no evidence, beside anecdotes of doctors who say they have quit, to back up the claims.

The evidence on the other side, however, is pretty compelling.

A January 2004 report by the Congressional Budget Office addresses the issue of rapidly increasing malpractice insurance premiums and their effect on the number of doctors and the overall cost of the U.S. health care system.

According to the report, malpractice premiums have only a small direct impact on health-care spending. They account for less than 2 percent of the total.

Claims that doctors are forced to practice “defensive medicine” in which they order extra procedures to protect themselves from lawsuits are inconclusive and weak. In fact, the report said, there is a stronger indication that some “so-called defensive medicine may be motivated less by liability concerns than by the income it generates for physicians or by the positive (albeit small) benefits to patients.”

In August 2003, the General Accounting Office, now called the Governmental Accountability Office, found only mixed evidence of doctors leaving their jobs because of high malpractice premiums. Evidence for the exodus was mostly anecdotal.

Malpractice insurance premiums are affected by many factors; payouts are only one. Premiums have been rising dramatically because insurance companies have had to make up for reduced investment income and drops in the level of their cash reserves. The recession and bad investments carry more responsibility for increases than big lawsuit awards. Caps have been able to slow the growth of premiums in other states, but factors beyond the courtroom still drive them up by double digits.

Already, Maine has a model system for litigating malpractice claims. All such lawsuits are screened before going to trial by a three-person panel, making it costly and timely for patients to pursue their cases. And malpractice premiums for doctors in Maine are the eighth-lowest in the country, according to a 2004 report from Medical Liability Monitor.

Even the title of the legislation that would create the caps recognizes Maine doesn’t have a problem: “An Act to Preserve the Medical Liability Climate in the State by Capping Noneconomic and Punitive Damages.”

In a popularity contest that pits doctors vs. lawyers, doctors are going to win almost every time. Society gives physicians the benefit of the doubt; we rely on them for their judgment and to protect our health. But the fight isn’t really between doctors and lawyers. It’s between patients who have been harmed and insurance companies that would rather not pay large claims.

The tort system in Maine works. We have faith that juries and judges will act appropriately in determining the financial penalty in cases where doctors have done wrong. And that’s one of the keys here. Caps on punitive and noneconomic jury awards protect only those doctors who have been found negligent. At the same time, grievously injured people – especially women, children and the elderly who qualify for smaller awards based on financial losses – suffer from caps that limit the amount of money they can receive for their pain and suffering.

There’s no evidence overall health care costs are lowered by caps on malpractice awards. So the choice comes down to protecting doctors who have made a mistake or trusting in juries and judges to administer justice on behalf of injured patients.

Liability caps are a bad idea. They should be opposed in Maine and nationally.