Capping medical-malpractice awards should not be adopted as public policy. It would be grossly inappropriate for several reasons: (1) The much-discussed "crisis" in medical care that doctors and insurers attribute to malpractice litigation is misdirected and can be traced to other causes. (2) The idea that malpractice awards are out of control and are increasing all the time is simply wrong and cannot be sustained by the facts, which suggests that attempts to cap award amounts for punitive damages are being made in bad faith. (3) Caps on medical-malpractice awards would preemptively privilege one class of litigant while penalizing another class of litigant simply by virtue of bringing a lawsuit, irrespective of the merits of any given case.
(1) A good deal of publicity has been given to the idea that malpractice litigation awards that are out of control have fostered a crisis in health care and driven physicians out of business because they are forced to pay increased insurance rates. The facts show that argument to be grossly simplistic and misleading. Acknowledging that some premiums can cost nearly $150,000 Crain's Chicago Business reports that the problem is not malpractice awards but other realities of modern medical care (Klein, 2004). Typical annual incomes for obstetricians, for example, have dropped from $350,000 to $250,000 in recent years, but not because of malpractice suits. Instead, insurance companies have capped the fees that they pay doctors, and insurers' savings yield limits to doctors' income. There has also been a decline in the use of surgical procedures, which have been substituted for by less costly nonsurgical treatments. There is also the dynamic of some medical practices; obstetricians in particular are at the mercy of nature when it comes to time management, and personal practitioner preference has driven some of them out of medicine. Malpractice litigation and amounts have nothing to do with that.
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