Find a fairer medical malpractice path
Thanks to a state Supreme Court decision overturning a controversial 2005 law, the Missouri legislature appears destined to debate caps on awards in medical malpractice cases all over again.
It is a polarizing topic — more so than it needs to be. Instead of plowing over the same old ground, lawmakers should use the court ruling as an opportunity to create a better system for evaluating malpractice complaints.
The court ruled 4-3 that the state’s $350,000 cap on noneconomic damages, such as mental anguish and pain and suffering, violated the constitutional right to a trial by jury.
That was the right decision. Jury awards for pain and suffering rarely reach $350,000, but patients and their families grievously harmed by the worst of preventable medical errors should not be restrained in seeking damages.
Still, the number of lawsuits has fallen since the 2005 law was passed, from a yearly average of 847 to 643, according to a study by the Missouri Foundation for Health. About 1 percent result in a jury verdict in the plaintiff’s favor.
The decreasing numbers signal a positive development. Doctors who are conscientious shouldn’t have to fear dire consequences from a false or exaggeraged claim against them.
Rather than entering into another contentious debate about “greedy trial lawyers” versus patients’ rights, Missouri leaders should look at new ways to handle medical malpractice claims.
One idea is a certificate of merit program, in which experts must certify that a claim has merit before it goes to trial. Another is “health courts,” where a panel of medical experts hears claims in lieu of a jury. These have the potential to hold down the numbers of lawsuits while still providing adequate redress to patients who have been harmed. Some states are looking at handling medical malpractice claims through a system similar to worker’s compensation.
The best way to avoid costly litigation is to reduce medical errors. Experts estimate that preventable errors kill as many as 200,000 patients a year, and many more die from infections acquired in hospitals.
Phil Cardarella
9 months, 1 week agoNo system will be fair to victims of medical negligence that requires that “medical” experts — i.e. fellow doctors — are the gatekeepers, let alone are the kangaroo jury.
The model for fixing this is obvious, but unpopular. We need to treat medical injury cases just like workers compensation by focusing on the injury, not who caused it. It makes sense to limit recovery amounts when it is unnecessary to go through the expensive and risky process of fixing fault.
Now, this rational compromise may not please the VERY FEW plaintiffs’ attorneys who make a chunk of money, nor the huge defense attorney law firms who make money denying recovery — and it will not make happy the insurance companies who soak hospitals and medical providers out of extortionate premiums (very little of which are ever paid out to victims). But, maybe that is exactly why it would be a good system.