Damage Caps Not Answer To Crisis

(This letter to the editor appeared in the February 14, 2003, issue of the Pittsburgh Business Times.)


I’ll admit it. I’m a trial attorney. A large portion of my practice is devoted to helping victims of medical negligence. As a former nurse practitioner, I have a unique perspective concerning our need to care for human beings.

When it’s time to debate the current tort reform measures touted by our president, my colleagues and I are often described as being the only ones opposing the “most reasonable solution.” That solution, say the AMA and the insurance industry, is to impose a limit of $250,000 on the “human aspect” of damages. The human aspect of a devastating injury is the inability to enjoy life. I hesitate to use the term “pain and suffering” because it trivializes the impact of a devastating injury.

Of course I oppose the damage caps. But it is absurdly and insultingly simplistic to say that my “profit motive” is the only, or even the primary, reason for my stance.

Another absurdity: When a jury awards a significant amount of money, the award is sometimes described in the media as “winning the lottery.”

I wonder if Linda McDougal feels like she’s going to win the lottery. Linda is the woman who recently publicly shared the story of how a paperwork mix-up resulted in her receiving an incorrect cancer diagnosis and – unnecessary – double mastectomy.

I wonder if Dorothy Thornton feels like she won the lottery. Her husband, Frank, was on the operating table for a minor procedure. A breathing tube was placed down his esophagus instead of his windpipe and Frank never woke up again. Then, the hospital altered the medical records to cover the error.

The current insurance industry campaign suggests that by limiting damages we will decrease the number of “frivolous lawsuits.” It makes a good sound bite. But think about it – the people who will suffer the consequences of the proposed limit are those who are the most seriously and permanently injured. I think about it, because I work for these people every day.

It’s ironic. In this very public debate that is ultimately about patient health and safety, the position we almost never see published is that of the patient who – in the care of his physician – thought he was safe, and will now never be whole again.

You won’t hear their side because they are forbidden to talk. If they have brought suit against their caregivers, and have “won the lottery” with a settlement, they are legally bound to confidentiality. This gag rule is a public menace and is a topic for another day, but one result is a public fully unaware that incompetent practitioners are everywhere, they often make repeated mistakes, and patients that sue and recover damages do not feel like lottery winners at all.

The medical malpractice insurance crisis in Pennsylvania is not caused by the legal system, and it won’t be solved with caps on damages. Other states have tried it, and it didn’t work. Insurance reform is the solution, but that is unlikely to happen. Did you know the insurance industry invested $37 million in the last presidential election?

Any change in the legal system should be designed to improve the quality of health care by protecting patient safety. People never – trust me on this – think they will be a victim of medical malpractice. Nobody ever dreams he or she will be in court someday with a trial attorney.

But don’t cry for me. Cry for the Linda McDougals and Frank Thorntons and the thousands of others who are silenced by agreements to keep their settlements confidential.

If the damage caps are implemented, cry for the many malpractice victims who will never have a chance at a jury trial or any financial recovery – because no lawyer will be able to afford to help them.

Cry for the uninformed, trusting patients of all the physicians who remain in practice after multiple blunders.

And while the media is finding new ways to vilify my profession, and my position, I’ll be busy helping yet another permanently injured client to “win the lottery.”