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  • Kirk Hartley

The Battles Continue on Medical Malpractice Legislation

Caps on damages for medical malpractice are back in the news. The renewed arguing arises because the Missouri Suprem Court just struck down a so-called "tort reform" statute that limited damages in medical malpractice cases. The Supreme Court’s opinion relied on the right to jury trial section of the Bill of Rights of the Missouri Constitution. The court held: "any limit on damages that restricts the jury’s fact-finding role violates the constitutional right to trial by jury."

The ruling produced the usual outpouring of claims that striking down the cap will cause doctors to leave the state, etc. In fact, however, the actual evidence is that medical malpractice remains a rampant problem, and that actual medical malpractice is best handled by apologizing quickly and offering reasonable compensation, as described in this prior post with links to the underlying studies, including this study from the University of Michigan and various papers downloadable from the home page for Benjamin Ho at Cornell. The "caps" argument also is undercut by an ardent "conservative" – Ted Frank. In this post on Point of Law, he stepped up to the plate and acknowledged that the evidence in Texas indicates tort reform did not make any difference in the presence of doctors in the state. That kind of admission is rare but good to see.

The "caps" advocates also fail to talk about what they can do to cut down on medical malpractice, a topic explored by Cornell. Likewise, the tort reform advocates likewise fail to explain how there is any degree of morality or fairness in imposing caps on persons catastrophically injured by obvious negligence, as exemplified by this case. More generally, a new empirical study from a Cornell researcher (Michael Frakes) knocks down the unsupported argument that "defensive medicine" causes extra expense for doctors "to avoid being sued."

Conclusion? It appears that medical malpractice reformers would lose if a Daubert hearing were held to determine if there is any evidence to support their arguments for caps. Society certainly would be better in human and financial terms if medical malpractice decreased. So, perhaps it would be best to examine the medical malpractice facts in a rigorous way and avoid the time and angst wasted on "caps" that do not work and impose terrible hardships on some persons who are badly injured or killed. Focusing on real issues, however, does not work well for some members of the cottage industries built around arguing for and against "tort reform." Hats off to those who, on the other hand, do actually look at the facts, and draw real world conclusions in a bi-partisan fashion.

(If anyone sends evidence to support the claim that caps work, I”ll happily publish it as an addition to this post.)

#MedicalMalpractice

About Kirk

Since becoming a lawyer in 1983, Kirk’s over 30 years of practice have focused on advising a wide range of corporations, associations, and individuals (as both plaintiffs and defendants) on both tort and commercial law issues centered around “mass torts.”

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