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Read Making a Killing

home / healthcare / in the media

The Journal News (New York)
Mar 28, 2003

by Editorial

Limiting malpractice awards needs exception

Bipartisan efforts in Congress to cap portions of jury awards in medical
malpractice suits hit a snag this week, and it's for the good. In any talk of a
cap, exceptions in cases of egregious medical error and severe injury or death
must be allowed if the general public is to accept such a limit.

President George W. Bush has made capping "pain and suffering awards" in
medical malpractice suits a priority as one way to reduce physicians' cost of
doing business and, he says, keep medical care accessible. The House, dominated
by Republicans, has passed a bill capping one segment of such awards to $250,000
regardless of the circumstances.

Many Senate Democrats as well as patient-rights and plaintiffs' advocates say
such a cap is unfair and would deny patients legal recourse. Supporters say the
current system favors huge awards, with too much money going to trial lawyers.

Democratic Sen. Dianne Feinstein of California initially supported a cap and
was working with Sen. Bill Frist, a Republican from Tennessee, majority leader
and himself a physician, to come up with legislation in the Senate. She wanted a
$500,000 cap.

Wednesday, however, she withdrew her name from the compromise bill, itself
opposed by the American Medical Association of her home state. Lobbyists in
California said the senator's bill and its $500,000 cap wouldn't lower
malpractice insurance premiums enough.

Feinstein's withdrawal puts into doubt passage of a compromise bipartisan
bill this year in Washington.

That's not necessarily a bad thing. We are not convinced that a cap would
make much of a difference in insurance rates; certainly, it would do little to
nothing to address other pressing health-care insurance concerns, such as
helping the uninsured, expanding patient choice or reducing medical errors
overall.

But Feinstein's bill did contain an important provision that would be
essential to any cap effort: a "catastrophic exemption" provision in cases where
patients suffer severe disfigurement or disability, or death, due to
malpractice. In such suits, under Feinstein's proposal, jury awards for pain and
suffering would be limited to $2 million or $50,000 times the number of years
the victim could be expected to live, whichever is greater.

Such a provision is vital to preserving the rights of victimized patients and
plaintiffs.

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