The Journal News (New York)

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.