Breaking Down the Tort Reform Myth

New York lawmakers wisely rejected a proposed $250,000 cap on pain and suffering damages in the 2011-2012 state budget. This is one victory in the long battle against tort “reform.”

The proposal by a committee appointed by New York Governor Andrew M. Cuomo sought to limit medical malpractice damages for pain and suffering. Unlike economic damages, which compensate injured parties for medical expenses and other specific monetary losses, pain and suffering compensation covers the personal losses for emotional distress, loss of enjoyment of life and the actual pain and suffering caused by someone else’s negligence.

We rely on juries to examine the facts of each case and determine how much plaintiffs should recover for the pain and suffering and loss of enjoyment of life they have experienced and will experience after a serious medical error. Caps on pain and suffering and other noneconomic damages artificially limit what a jury can award and arbitrarily put a price tag on a person’s individual experience.

The proposed caps would have severely limited medical malpractice victims’ rights. Medical negligence can forever change people’s lives, whether they must face lifelong paralysis, infertility, serious brain damage or the wrongful death of a loved one.

New York has avoided making a terrible mistake. Yet, proposals for arbitrary caps on noneconomic damages are not going away.

The Medical Malpractice Crisis Debunked

For decades, the health care and insurance industries have lobbied to cap noneconomic and punitive damages in civil lawsuits. Promoters of tort reform argue that limiting damages would reduce insurance premiums and protect health care professionals from frivolous lawsuits. Insurance companies have actively advocated for tort reform, claiming that it will reduce health care costs.

A large body of research, however, shows that these claims have little factual support. First, the caps only apply to claims that have already been determined to be valid — so how could their imposition have any bearing on “frivolous claims?” While insurance companies have experienced record profits — health insurance companies’ profits increased by 56 percent in 2009 alone — medical malpractice claims have dropped. A 2009 report by Americans for Insurance Reform found that medical malpractice premiums are not on the rise. Rather, they are at their lowest in 30 years. In states that have medical malpractice caps, insurance premiums were similar to those in states without caps. Furthermore, the number of medical malpractice claims has dropped almost 50 percent in the last ten years.

The concern about frivolous lawsuits is also perplexing. A 2006 Harvard School of Health study, which reviewed medical malpractice claims to estimate the volume of frivolous malpractice lawsuits, found that 90 percent of medical malpractice claims involved injuries, most of which were severe. The study also found that reducing the number of meritless claims would not significantly decrease administration costs.

Insurance companies are increasing their profits while advocating for financial caps that would further benefit them — and few others.

Standing Up for Patient Rights

Many injured individuals never bring a medical malpractice claim. Those that choose to bring claims tend to face serious injuries or the wrongful death of a family member. Should the state or federal government arbitrarily put a price on the pain and suffering that these individuals have experienced?

Noneconomic damages, such as pain and suffering and loss of enjoyment of life, are necessary to cover the emotional damage that individuals and families suffer as the result of a medical professional’s negligence. Lifelong injury to an infant due to a birth error, medication errors caused by failure to read a patient’s medical history, the failure to diagnose cancer, the loss of a limb, one’s sight or the ability to have a child after a routine procedure – these are only a few of the many medical mistakes that can dramatically change a person’s life.

Noneconomic damages are one of the only ways the judicial system can recognize those changes. In some cases, they are also the only way families can recover adequate compensation.

If medical professionals and insurance companies want to save even more money, they should take steps to improve medical care rather than place the burden on the backs of innocent victims. We thank the New York legislature for making the right decision and hope to continue to see progress away from caps on noneconomic damages.

What to Do if You Are the Victim of Medical Malpractice

Medical negligence cases are time consuming and challenging. You must show that a medical professional or institution made a mistake by breaching the applicable standard of care and that the mistake caused your injury. If you are facing a serious injury or the wrongful death of your loved one, do not hesitate to contact an experienced medical malpractice attorney in your area.

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