Misdirection on Malpractice

January 10, 2005

There's not much evidence to support President Bush's assertion last week that medical malpractice awards are to blame for high healthcare costs. For one thing, insurers that have raised malpractice premiums in recent years have tended to do so less because of soaring jury awards than because of declining stock market returns.

What the anecdotes cited by Bush do show is a troubling, lottery-style arbitrariness in juries' pain-and-suffering awards, whose median has soared from $474,536 in 1996 to more than $1 million.

Trial lawyers focus on claims with the highest reward potential while ignoring other claims with merit, and they admit they concentrate on states that have no caps on pain-and-suffering damages. That alone is reason to try to make the system fairer for both doctors and patients, but what Bush wants is too narrow and punitive.

Last year, the Senate killed a House- approved bill to impose the same cap that Bush called for in his speech: a $250,000 limit on pain-and-suffering damages. We hope the Senate shows similar restraint this year; the cap is based on a limit that California imposed in 1975 and has never raised.

Advocates for the scores of patients harmed by incompetent or inattentive doctors and nurses at Martin Luther King Jr./Drew Medical Center , for instance, make a strong argument that lawyers would have been more willing to represent penniless victims had California 's $250,000 cap not prevented them from recouping litigation costs. The Senate should begin discussion of imposing caps with an inflation-adjusted figure of $800,000 or more.

Any plan to weaken patients' ability to penalize doctors and hospitals should be tied, in fairness, to a strengthening of other patient protections. Bush should challenge insurers, who are demanding caps, to prove that the cost of medical insurance would drop if they were imposed. Any legislation imposing caps should also do what California did in 1999: guarantee patients the right to a timely independent medical review if they believe they have been harmed. Bush has failed to ask for such protections. Finally, the Senate should support pending legislation to encourage healthcare providers to share information about medical errors.

White House Press Secretary Scott McClellan stressed last week that although malpractice laws have historically been crafted by the states, high pain-and-suffering jury awards are "a national problem that requires a national solution." But the lack of credible systems to encourage doctors to report medical errors and to guarantee patients independent reviews of their medical care is a national problem too. These issues can't be fairly solved in isolation.