Study Questions Whether Med-Mal Caps on Only Non-Economic Damages Reduce Total Awards
National News • March 21, 2005
A new study raises questions about medical liability reform initiatives premised on the assumption that caps on awards for non-economic damages in medical malpractice cases will reduce total jury ...
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Subject: Med Mal caps & alternatives
Posted On: March 22, 2005, 4:34 pm CST
Posted By: Avon
Comment:
I think a bigger concern than too many big cases is too many marginal-merit cases. The average verdict is a small fraction of the 250K cap already ... and cases under 250K burden the system, while they do only modest good to a plaintiff - and they pay the lawyer very little for her or his years of work.
The president is almost as indignant at "frivolous" (i.e. worthless) malpractice cases as he is at big (i.e. worthy) malpractice cases.
He may have a point: why do we want to cap malpractice cases (that is, hit the worthiest victims the hardest) while we do the opposite in auto cases (that is, relegate smaller injuries to the no-fault system, with no "non-economic" award at all)? Maybe there should be a minimum of 250K, not a maximum, in malpractice cases!
As a attorney for malpractice victims, I may have a duty to my client to argue that their case fits the criteria for an award in whatever way applies. But that's nothing new ... if a "creative" economic-damages argument was available, I'd have been malpracticing if I wasn't already making it. That is, so long as it wasn't duplicative.
Juries abhor "double-dipping" as much as they want to "do the right thing". So they may be open to re-characterizing an element of the injury, so as to make it compensable. But I can't create an injury where there was none before, and even if I did, the jury would likely turn against me and the victim entirely.
In some states, the malpractice insurance industry has lost a lot of money - but mostly due to poor asset management (investments, etc). That's why in other states it's been so consistently profitable, regardless of whether any caps exist.
In short, the topic is just too complex for a simple, nationwide solution. Insurance is typically a matter of state law and regulation. I think the feds should simply back off the entire issue.
Subject: Med Mal caps & alternatives
The president is almost as indignant at "frivolous" (i.e. worthless) malpractice cases as he is at big (i.e. worthy) malpractice cases.
He may have a point: why do we want to cap malpractice cases (that is, hit the worthiest victims the hardest) while we do the opposite in auto cases (that is, relegate smaller injuries to the no-fault system, with no "non-economic" award at all)? Maybe there should be a minimum of 250K, not a maximum, in malpractice cases!
As a attorney for malpractice victims, I may have a duty to my client to argue that their case fits the criteria for an award in whatever way applies. But that's nothing new ... if a "creative" economic-damages argument was available, I'd have been malpracticing if I wasn't already making it. That is, so long as it wasn't duplicative.
Juries abhor "double-dipping" as much as they want to "do the right thing". So they may be open to re-characterizing an element of the injury, so as to make it compensable. But I can't create an injury where there was none before, and even if I did, the jury would likely turn against me and the victim entirely.
In some states, the malpractice insurance industry has lost a lot of money - but mostly due to poor asset management (investments, etc). That's why in other states it's been so consistently profitable, regardless of whether any caps exist.
In short, the topic is just too complex for a simple, nationwide solution. Insurance is typically a matter of state law and regulation. I think the feds should simply back off the entire issue.