Medical Malpractice Damage Caps Are Bad

Medical malpractice is an epidemic. Preventable medical errors kill more than 400,000 people per year. Despite this, lobbyists are pushing hard for a federal cap on medical malpractice claims. Federal lawmakers are receptive. Legislators have been trying to push through bills that would create a $250,000 federal cap on the amount a jury can award in a medical malpractice case. Virtually every state has some form of medical malpractice tort reform, with more than 30 states enacting caps on malpractice damages. Currently, states like Arizona have a constitutional provision prohibiting caps.

The Detrimental Impact of Medical Malpractice Damage Caps: Undermining Justice and Patient Rights

Medical malpractice damage caps are falsely advocated for as a means to control rising health care costs and insurance premiums. While proponents argue these caps on damages provide financial stability to health care providers, the reality is that caps pose a significant threat to justice and patient rights–in fact, the public is forced to bear the financial burdens of people who are insufficiently compensated in medical malpractice claims.

The Alleged Purpose of Medical Malpractice Damage Caps

Any limitation or cap on medical malpractice claims is part of tort reform efforts. These efforts are led by those who stand to benefit from the caps–insurance companies, negligent health care providers, and legislators paid to support caps. The main goal of caps is to limit the amount of compensation available to victims of medical malpractice.

Think about it. More than half of U.S. states enacted a damage cap on medical malpractice claims, but have you noticed your health care costs significantly decreasing? You haven’t because the portion of health care costs attributable to medical malpractice awards is tiny–less than 2.5% before most states enacted caps.

Have you heard how these 30+ states no longer have staffing shortages? You haven’t because potential medical malpractice claims rarely cross the minds of young adults. They are mostly influenced by rising tuition costs, anticipated debt, and the time commitment versus other professions. It can take over 10 years to pay off medical school debt.

Advocates also argue that these caps serve as a deterrent against frivolous lawsuits. That is laughable. Considering the average personal injury lawyer makes between $72,000 and $98,000 per year, do you really think they are going to spend over $200,000 and invest several years of time to pursue a frivolous medical malpractice claim? Hoping that, maybe, there will be a payout if a judge or jury doesn’t see the lack or merit in their case?

Actually, the “frivolous” lawsuits advocates point to are either fabricated, not medical malpractice claims, or are misrepresented to evoke an emotional response in the listener. The health care system is not plagued by frivolous lawsuits. The reality is that most malpractice victims cannot pursue accountability, or fair compensation, because it will cost them more in litigation costs than they might receive in a settlement or jury award.

Medical Malpractice Damage Caps Undermine Accountability

Medical malpractice damage caps undermine accountability. By placing a ceiling on compensation, damage caps shield negligent health care providers from facing the full consequences of their actions. In cases where a patient has suffered severe or life-altering injuries due to medical malpractice, damage caps result in an inability to cover their extensive medical expenses, rehabilitation costs, and loss of future earnings. This shifts the cost of medical negligence to taxpayers.

What incentives do negligent health care providers have to improve patient safety if they are shielded from liability and the costs that society will bear for their negligence?

By capping medical malpractice damages, the legal system inadvertently creates a disincentive for health care providers to prioritize patient safety and invest in preventive measures. Damage caps leave health care institutions and providers with less incentive to invest in staff training, advanced technology, and other measures aimed at preventing medical errors. On the other hand, the fear of financial repercussions serves as a powerful motivator for health care institutions to uphold the highest standards of care.

Caps Provide Inadequate Compensation for Non-Economic Damages

Some medical malpractice damage caps only apply to non-economic damages. This type of cap on medical malpractice claims target non-economic damages, such as pain and suffering, emotional distress, loss of enjoyment of life, and loss of consortium. These intangible losses are challenging to quantify, making them susceptible to being undervalued or capped.

Victims who have endured significant physical pain, loss of a limb, paralysis, or a diminished quality of life may find their non-economic damages constrained by arbitrary limitations. Think of the 40-year-old wife and mother of two young children who becomes paralyzed from medical negligence. Is $250,000 a fair amount to compensate the woman, her spouse, and her children for the loss of enjoyment of their lives over the next 40 years of her life? Would you accept $250,000 to become paralyzed for the next 5 years, let alone 40 years?

Medical Malpractice Damage Caps Have a Disproportionate Impact on Severe Cases

Medical malpractice cases include injuries that range from minor temporary issues to catastrophic outcomes with long-lasting consequences. Damage caps, however, treat all cases uniformly, disregarding the severity of the harm inflicted. In medical malpractice case that result in permanent disability, loss of limb, or wrongful death, damage caps magnify the harms and losses. Arbitrary damage caps leave victims and their families feeling further victimized, having to live with an unjust outcome while the one who caused their situation avoids responsibility.

Medical Malpractice Damage Caps Decrease Access to Justice

One of the fundamental principles of the American justice system is the assurance of access to justice for all. Medical malpractice damage caps, however, pose a threat to this principle by limiting the ability of victims to hold negligent health care providers accountable. Injured patients may find it too expensive to pursue these claims on their own, too difficult to find proper legal representation, and totally unfair.

One unjust aspect of medical malpractice claims that no one mentions is liens. Regardless of the amount of a settlement or jury verdict, the victim’s health insurance company usually is entitled 100% reimbursement for injury-related care that it covered. In other words, with a non-economic damage cap of $250,000, after paying lawyers’ fess and the excessive costs of a medical malpractice lawsuit, the health insurance company can come and take all the money that would otherwise go to the victim and their family. This potential further decreases access to justice because no one will want to endure multiple years of litigation to walk away with nothing.

So-Called “Defensive Medicine” is not Always a Bad Thing

One irony is that proponents of caps point to “defensive medicine” and claim that it increases health care costs. When you actually look at what defensive medicine means you realize it includes the use of additional testing. So-called “defensive medicine” is less about the provider’s gut feeling or general statistics, and more about individualized patient care. After all, defensive medicine does not allow providers to:

• cut corners,
• guess at diagnoses,
• assume medical problems are not serious, or
• assume a “wait-and-see” approach will work.

Do you really want your health care provider to assume the nodule in your lung or breast is benign, since most are, and wait until you have stage IV cancer to make the diagnosis?

A Cap on Medical Malpractice Claims is Un-American

There are certain universal truths about the American justice system:

• Artificial barriers to justice undermine the core values of the American justice system.
• Artificial barriers to accountability undermine the core values of the American justice system.
• Artificial barriers to holding wrongdoers fully responsible for the harm they cause undermine the core values of the American justice system.

Through this legislation, the federal government wants to take away the freedom of choice our Founders ensured would belong to the states and their citizens. The citizens have the freedom of choice as to systems of government and the law under which they prefer to live, but the federal government wants to take this freedom away. Essentially, laws like this will protect unsafe health care providers and limit your ability to hold them accountable for their preventable medical errors. The proposed legislation would violate the Arizona Constitution.

Many conservative organizations and their leaders oppose this legislation and have written to Congress urging it to reject “the ‘federalization’ of state tort law that is contrary to constitutional principles and represents an undue restriction on freedom.” You should too. Reach out to your Congressional representatives and senators and let them know you oppose any federally-mandated Medical Malpractice Damage Caps. Fight for your right to hold negligent health care providers accountable and be fully compensated for the harms and losses they cause.

Concluding Thoughts on Medical Malpractice Damage Caps

While the intent behind implementing medical malpractice damage caps is allegedly rooted in controlling health care costs, the unintended consequences on justice, accountability, and patient rights cannot be ignored. These caps disproportionately favor health care providers at the expense of the injury victim and their families. Damage caps hinder access to justice and stifle the economic incentives for improved patient care. Medical malpractice damage caps are bad.

Ultimately, if you or a loved one has been severely injured by medical negligence, a medical malpractice lawyer can review your medical records and provide a free consultation to explain your options.

About the Author

Joseph D'Aguanno

Guided by the belief that being a highly skilled specialist in a narrow field is better than being ordinary in everything, Joseph “JD” D’Aguanno leads Arizona’s best personal injury law firm in Phoenix, AZ. Having extensive cross-training in pre-litigation negotiations and trial lawyer skills, with decades of experience, JD strives to provide clients with the most valuable legal services a personal injury lawyer can provide. Under his direction, Gage Mathers Law Group is an award-winning personal injury law firm providing aggressive representation to victims of a car accident, medical malpractice, dog bite, motorcycle accident, and other injurious events. Gage Mathers is trusted by thousands of lawyers and clients throughout the country because of their reputation for getting clients the maximum compensation they deserve.

Years of experience: Over 23 years
Bar number: 020421
Location: Phoenix, AZ
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