Obama Missed The Mark On Medical Malpractice Caps
Believe it or not, not everyone in the Washington, D.C. area is involved with politics. When this area is portrayed in the movies or on television, it seems like everyone has a security clearance, or that everyone works diligently for one government agency or another. Characters in D.C. based-dramas are all aides to a Senator, or they work at the Pentagon, or they wear suits and attend top secret meetings, or they wheel and deal in the backrooms of fancy restaurants.
For those of us who actually live here, we know that portrayal to be false. Most of us don’t work for the government. Most of us aren’t “operatives,” political or otherwise. On any given day, there might be legislation in the House or Senate that causes a big stir among those who actually work on Capitol Hill, but the rest of us who don’t work there rarely notice such things.
Much of the work that goes on at the Federal level involves minutia. We don’t mean that in a condescending manner. We are sure that it is necessary minutia that needs to be addressed. But if legislation passes that changes the regulation width of the Styrofoam tray in which ground beef is packaged, that hardly has an effect on the day to day life of Washingtonians, or the rest of the citizens of the country for that matter. The rest of us are worried about raising our kids, doing our jobs and paying the mortgage.
It is a rare day indeed where natives of this city can point to a recommendation by a committee or a piece of legislation and say with great certainty that they will immediately feel the effects of it if it becomes a reality. But recently, we heard something in President Obama’s State of the Union that caused us a great deal of concern. As injury lawyers, we have seen firsthand how “caps” on medical malpractice damages have benefited insurance companies, but have left the actual victims of surgical errors and medical negligence with far less than they should have received in compensation for their injuries.
Here is the actual line in the speech, as reported in the Los Angeles Times:
"I'm willing to look at other ideas to bring down costs," besides repeal of his health care bill, Obama said, including "medical malpractice reform to rein in frivolous lawsuits."
We have a real problem with the term “frivolous lawsuits,” particularly when it is coupled with “medical malpractice reform.” In the first place, it advances the fiction that anyone who brings legal action against a doctor or other medical professional is “faking it,” or is looking to be rewarded for nothing. This is absolutely not the case. Victims of medical malpractice are people who have placed their health and trust in the hands of doctors, surgeons, nurses, pharmacists and other medical professionals, and have had that trust violated. And we aren’t talking about mere inconveniences. When we say “medical malpractice,” we mean severe and often life-threatening injuries. We mean limbs that have been mistakenly amputated. We mean patients who have been given the wrong blood type. We mean pharmacists who have misread the prescription. We mean doctors who gave a rushed and thoroughly disinterested diagnosis that resulted in real harm being done to the patient. The idea that the people who get seriously hurt due to instances like this are engaged in frivolity of any kind is disingenuous and insulting.
The solution that almost always accompanies talk of medical malpractice reform comes in the form of “caps” on non-economic damages. This means that an arbitrary and unrealistic ceiling is placed on the amount of money that victims of medical malpractice can receive for pain and suffering. In other words, there is a strict limit on the amount of compensation that they can receive for anything about the injury that did not directly cost them money.
While this might seem reasonable, consider what the end effects of these caps have done to the rights of victims. In Texas, for example, cases involving birth injuries or instances where the baby died due to the mistakes of doctors have virtually disappeared. They have not disappeared because mistakes by the doctors have suddenly stopped. They have disappeared because since infants aren’t money-makers, the only real compensation that a grieving family can receive is around $200,000. With this being the limit to the compensation, it becomes very easy for malpractice insurance companies to price plaintiffs out of the courtroom. All they have to do is file for delays and hire more expert witnesses than the plaintiff can afford to match, and all of a sudden the whole court case would end up costing more than the victims could possibly win in damages. When victims and their attorneys are facing this economic reality, often the cases are never even filed.
These caps do not benefit anyone except the people who need it least. Medical malpractice insurance is a multi-billion dollar business, and profits are soaring. We have no idea why President Obama seems to think that protecting these astronomical profits is more important than protecting the rights of medical malpractice injury victims. Perhaps it is a concession of some sort. But if these caps become a built-in part of Obama’s health care reform, “tough luck” will be the only advice available for most malpractice victims.
Greenberg and Bederman is a medical malpractice law firm located in Silver Spring, Maryland. We are currently offering legal assistance to those in Maryland, Virginia and Washington, D.C. who have been injured due to instances of medical malpractice. This includes surgical errors, wrong diagnosis, pharmaceutical errors, and unnecessary delay of treatment. If you or a loved one has been injured due to the actions of a doctor, surgeon or other medical professional, contact Greenberg and Bederman for a free legal consultation today.
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