• Caps, no caps: the number of medical malpractice suits is down either way Monday, February 1, 2010

    Here are statistics for three jurisdictions.  See if you can figure out which ones put limits on damage awards to victims of medical negligence during that time period and which ones–if any–didn’t.

    Jurisdiction A: Medical malpractice suits dropped 54% from 2001 to 2004

    Jurisdiction B: Medical malpractice suits dropped 49% from 2002 to 2009

    Jurisdiction C: Medical malpractice suits dropped 45% from 2000 to 2008

    Perhaps you’ve been told there’s an explosion of medical malpractice suits that can be reduced only by “tort reform” implementations of damage caps…in which case you might be inclined to think all three of these jurisdictions must have implemented caps in order to produce such eye-popping results.

    Jurisdiction A is Harris County, Texas (where Houston is).  Tort reform apologists there attribute the decline to damage caps passed in Texas in 2003.

    Jurisdiction C is Jackson County, Missouri (where Kansas City is).  Tort reform apologists there attribute the decline to damage caps enacted in Missouri in 2005.

    And Jurisdiction B?  The state of Iowa…where there have never been any limits whatsoever placed on damage awards.

    The Iowa numbers come from a report in the Des Moines Register, which also includes this chart comparing typical annual malpractice premiums paid by doctors in Iowa compared to those paid by doctors in Florida, which enacted limits on non-economic damage awards in 2003:

    Iowa-Florida caps

    Clearly, the lack of damage caps in Iowa hasn’t resulted in an explosion of either malpractice suits or malpractice insurance premiums.

    An explosion of malpractice suits?  Even an insurance company executive can’t spout that line.  “We’re not seeing a lot of cases being filed with just the hope that something will get paid out,” is what Libby Lincoln, vice president of Midwest Medical Insurance Co., told the Register.  And yet Lincoln still wants to add restrictions to limit victims’ rights to seek damages.

    The Register story gives an example of why it’s difficult to pursue some malpractice cases, caps or no caps.

    Debbie Haus of Des Moines was surprised to find out how hard it can be to press a medical malpractice lawsuit.

    Her father, Leroy Brown, 68, came down with a dangerous infection in his left arm in December, a few days after he had an intravenous catheter placed in the arm at a Des Moines hospital. Hospital staff members kept the catheter in his arm for days, even though he didn’t receive intravenous treatment through it, his daughter said.

    Haus has photos showing how grotesquely swollen, red and blistered her father’s arm became after he returned home. The infection caused pain, a high fever and weakness, she said. Brown fell to the floor in his home, and he might have died if her cousin hadn’t found him, she said.

    He was taken to a different hospital, where doctors managed to fight off the infection with strong antibiotics, but Brown still faces months of rehabilitation to get his strength back, she said.

    After the family complained, an administrator from the first hospital sent a letter to Brown saying, “I regret that the experience … was not positive for you.” The hospital offered to cover any out-of-pocket costs Brown faced for his hospitalization, but nothing else.

    “I was infuriated,” Haus said. “I think he deserves something for his pain and suffering, at the very least.”

    She asked a lawyer to look into a possible lawsuit. “He said we could probably get a judgment, but it probably wouldn’t be as much as the cost of the case,” she said. Her father suffered no permanent damage, and because he’s retired, he couldn’t seek reimbursement for earning capacity.

    Leroy Brown is a victim of medical negligence who will receive no compensation at all for the harm that was done to him.  And his case points out one of the ways in which caps on non-economic damages can be horribly unfair.  A highly-paid doctor with the exact same injury could be compensated for his lost income and reduced earning capacity.  But you’ve retired after a life of hard work?  Apparently you had nothing better to do than suffer–no compensation for you.

    “The only medical-malpractice cases worth filing are those in which an error clearly caused a death or a permanent disability,” is the way the Register reporter characterized an Iowa lawyer’s view.  Everyone else can just take their lumps, even though their injuries were no fault of their own.

2 Responses to “Caps, no caps: the number of medical malpractice suits is down either way”

  1. Michael Kirsch, M.D. says:

    i wonder if the Iowan docs all left for states with caps, explaining your data.

  2. Michael End says:

    Dr. Kirsch,
    According to the December 2009 AMA publication “Physician Characteristics and Distribution in the US”, the number of doctors in Iowa increased by over 10% from 2000 to 2007. The article could have included Minnesota as another example of low medical malpractice insurance premiums in a state without any caps on damages. An internist there pays $3,375, a general surgeon pays $11,306, and an OB/GYN pays $20,950. These figures are found in the October 2009 issue of Medical Liability Monitor. The truth is that there is no relationship between caps on damages and the cost of health care.

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