AMA Editorial Endorses the HEALTH Act of 2011

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by Courtroom Mama


An editorial in today’s American Medical News, a publication of the American Medical Association, called for an endorsement of H.R. 5, the Help Efficient, Accessible, Low-cost, Timely Health Care Act of 2011 (“HEALTH Act,” here in full PDF glory). Describing the U.S. medical liability system as “badly broken,” the editorial suggested that this bill would be a “major step forward in reducing the costs to the system and lessening the harm to patient access posed by frivolous lawsuits and the practice of defensive medicine.”

The article states:

The growing number of physicians who have seen the dark side of the liability system know that a large majority of these cases are dropped or dismissed outright. But that doesn’t mean they are without financial consequence — not by a long shot. On average, physicians can expect to incur legal costs of more than $25,000 for every claim against them.

To remedy this situation, the article suggests, among other things, caps on noneconomic damages, caps on punitive damages, limits on attorney fees, and statutes of limitations.

These remedies are interesting to me, because some of them seem unresponsive to the problem as stated. For example, there are already statutes of limitations in place in most if not all jurisdictions; in some places the period to sue for medical malpractice is less than that for any other tort.

The editorial acknowledges that a large majority of cases are dropped or dismissed outright. When this happens, plaintiffs—and their attorneys—get nothing. There is a reason for the contingency basis. Put bluntly, there is not much incentive to avoid committing malpractice on patients who can’t afford to sue, and the tort system is all about deterrence.

Considering that the $25,000-a-pop figure cited are fees that go to the defendant’s attorney while the plaintiff and her attorney walk away empty-handed, I can only assume that the limits on attorneys fees apply to the defense bar.

I’m especially intrigued by the idea of a cap on punitive damages, because these are rare in malpractice cases. Punitive damages, or damages intended to punish the tortfeasor (isn’t that an awesome word), exist because what the person has done is so offensive that the jury wants to make it hurt. Punitive damages are generally not even available in negligence as they’re reserved only egregious circumstances of wanton recklessness or intentional infliction of harm. Does it make sense to place a cap on them when an important role of the jury is to express our opprobrium for injurious conduct? Consider, for example, my favorite case: an Ob/Gyn carved his initials into a patient’s skin after performing a cesarean section. She sued for $5.5 million, they settled for $1.7 million.  

In light of our recent (amazing) discussions on defensive medicine, particularly the research from Texas, what do you think?