In the coming months in this state, we are going to hear a lot about something called “tort reform.” We’re going to hear a lot about what’s called “capping damages” or “limiting pain and suffering awards.” Keep in mind, the problem is not actually a battle of doctors versus lawyers as it will be portrayed in the media. The problem rests squarely on the shoulders of the insurance industry.
As those of you who read this article know, I am always quick to point out my bias. In this case, I do not have quite as much as you may think. It is true that I am a personal injury lawyer. It is also true that my wife and I help people who have suffered serious personal injuries. However, the vast majority of our practice is devoted to helping those injured outside of medical negligence. Though I have strong feelings about any subject relating to helping the injured, I also have strong feelings about protecting the doctors and allowing them to practice medicine and thrive.
The idea being debated is whether to “cap” damages. In other words, after a jury has found a doctor negligent and found a fair amount of general damages to be, say, $500,000 – and after a judge who heard the case does not strike down the award as unreasonable – both the judge and jury are overruled. An arbitrary ‘cap” on the damages is put in place, preventing the person that was a victim from receiving the full damages. Even if the doctor admits he caused the errors and admits the person will spend every day for the rest of his life in excruciating pain as a result of his admitted mistake the jury is limited in the amount it can award for general damages.
Why is such a proposal being made? Well, let’s look at what is going on. Doctors are understandably upset that their malpractice premiums are on the rise, particularly in the last few years. Doctors do not want to be the target of an increasing number of lawsuits. That is understandable. Just one problem . . . there is no increasing number of lawsuits. There is also no increasing amount of jury awards. At the same time the insurance companies across the country were raising doctor’s malpractice premiums, the number of lawsuits was decreasing. The amount of money juries were awarding against our doctors was decreasing. Yet, the insurance companies – uncontrolled and largely exempt from anti-trust laws – raised their rates and pointed fingers at the lawyers. Not only unfair, it is just plain wrong.
Worse yet, a cap on damages will not achieve our goal . . . it will not do anything to ensure doctors’ malpractice premiums level off or decrease. Hey, don’t take my word for it. Just look at Nevada.
A few years back, Nevada faced a similar issue to the one Arizona is now facing. Doctors claimed their malpractice rates were rising because of lawsuits, and demanded a cap on jury awards. The thinking was that when a jury cannot give the full and fair amount of damages, the insurance companies will have less risk, and will lower the rates. Guess what? It failed. Yes, damages are now “capped” but the largest malpractice insurer did not lower its rates. Why? Because rising malpractice rates have not been due to increasing jury awards. How do we know? Because jury awards are decreasing. Because the number of medical malpractice lawsuits against doctors is decreasing. Because the number of large jury awards against doctors is decreasing.
The only thing growing is misinformation and a push for a law that takes a fair award away from those most seriously harmed.