Another Myth Goes Down the Drain

Earlier this century there was a push, orchestrated by medical associations and insurance companies, to impose what they called “tort reform”. These so-called reforms, including “caps” or the amount that can be recovered for “non-economic” injury only impacted medical malpractice claims, and they were intended to limit the amount a person injured by medical negligence could recover. Fortunately, the courts in many states have rejected those attempts as violating their respective state constitutions. Georgia’s caps were eliminated in 2010 in Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt. A recent case in Florida, in finding that state’s caps unconstitutional, also debunked the nonsense the insurance companies used to convince legislators to enact the caps in the first place.

A brief discussion of the types of “damages” that an injured plaintiff is allowed to collect from someone whose negligence caused the injury. These damages are available in all types of injury cases: car wrecks, premises liability, dog bites, etc. First, an injured person can recover “economic” injury, which typically involve medical expenses incurred and lost income. If someone can’t work for some period of time, the amount of income lost is part of his damages. Since the founding of our country, an injured person can also recover for her “pain and suffering”, which is classified as “non-economic” injury.

While medical expenses and lost income are relatively easy to add up, there is no formula to measure an injured person’s pain and suffering. It is an amount that a jury thinks is appropriate under the circumstances. Someone who is paralyzed is clearly going to recover more for pain and suffering than someone with a broken leg. Our system asks that our juries come up with a fair number under the particular circumstances of the case.

The caps on damages are intended to limit the amount that can be recovered for the injured person’s pain and suffering. In Georgia it was $350,000; in Florida it was $500,000. In some other states it is as low as $250,000. What should be remembered is that these caps only affect individuals injured by medical negligence. Someone with the exact same injuries but caused by any other negligence is not limited.

The decision by the Supreme Court of Florida in Estate of McCall v. United States, makes clear that the reasons given to justify the caps are bogus. First, the Supreme Court addressed the argument that there were runaway juries that were giving ridiculously high amounts to injured persons. To address that issue the Court looked at the actual numbers of jury awards and concluded there was no proof that there were runaway juries. The Supreme Court looked at payments of $1 million or more for medical malpractice cases. Most of the insurance payments made (92.5%) were made by settlement, not by jury verdict. Indeed, over 10% of those million dollar plus payments were made without a lawsuit having been filed. In short, there were no “runaway” juries, but even if there were, the few large verdicts had no overall impact on the medical malpractice insurance system.

Next, the Court determined there is no proof that medical malpractice insurance premiums would be higher if there were no caps. One would think that if that argument were correct, insurance premiums would have decreased since the caps were put into place. The fact that insurance premiums have not gone down is certainly proof that caps have no impact on rates, one way or the other, even though the profits made by insurance companies on medical malpractice insurance went up after the caps were put into place.

Finally, the Court rejected the idea that doctors fled the state because of malpractice issues. It simply didn’t happen, and was just another example of fear mongering perpetrated by the insurance industry. Hopefully more decisions like this one will be coming.