The Oregonian
The weeping parents of 17-year-old Jesica Santillan created a stirring image of genuine pain and incomparable suffering. Their child’s death was the outcome of a botched heart-lung transplant.
Their grief cannot be measured.
But damages for the Santillan family’s pain and suffering could be limited by arbitrary caps.
Sharp curbs on awards for pain and suffering, those damage judgments that are separate from medical expenses or lost earnings, are being widely proposed as the solution to escalating medical malpractice insurance premiums for physicians. It is a misguided approach that penalizes the victims, does nothing to reduce medical errors and can’t ensure lower rates either.
This is not a new issue. Oregon voters opposed caps on damages 3-to-1 in a 2000 election. The measure was referred to voters after the Oregon Supreme Court agreed with a 1994 appellate decision that found the state’s $500,000 cap was unconstitutional. (The limit remains on medical negligence that results in death.)
Still, rising premiums have apparently led some doctors to abandon the practice of medicine, most notably obstetrics. Oregon has seen a loss of 20 percent of its baby delivery doctors. The exodus of medical practitioners is alarming and has led lawmakers in Salem and Olympia to revisit limits on pain and suffering.
The issue isn’t isolated to the Northwest. The U.S. Senate is considering legislation to cap medical malpractice damage awards at $500,000, double the amount approved in the House last month.
But an artificial limit isn’t the right answer. Not only has it been soundly rejected by Oregon voters, but it also would put the civil courts out of reach for most consumers. Lawyers can’t afford to pursue contingency-fee civil lawsuits that call for expensive research and expert testimony unless they have a chance to recover their costs.
Further, it’s not entirely clear that damage awards are the sole drivers of premium increases.
Rates in Oregon were flat for most of the 1990s. The case that challenged state limits was decided in 1994.
California found that caps on noneconomic damages weren’t enough to hold down premium increases. California set limits on increases in 1988 and enjoys some of the lowest malpractice premium rates in the country.
While some multimillion-dollar damage awards around the country have been questionable, there are remedies that stop short of artificial caps. The answer to outlandish awards isn’t setting an arbitrary cap, but rational analysis that connects awards to the degree of negligence involved.
Congress should leave this to the states. The challenge for the states is to strike a fair balance between medical accountability and health care consumers’ right to relief.
