Washington's medical malpractice tort system is in crisis. Rising costs are hurting us all and some doctors have even been forced to limit their practices. Unfortunately, the leading suggested treatment is more meat cleaver than scalpel. It's time for a better idea.
Let's look at the most common suggestion for reform: put a cap on damage awards. Locally, the Washington State Medical Association is pushing for this kind of lid.
If you put a cap on damage awards, then no matter what a doctor or hospital has done to you there's a limit on what you can collect, and therefore a limit on how much the guilty party gets punished. The limit is on the payments that a jury will award for pain and suffering and as punishment for the defendant. Typical proposals don't put a limit on measurable economic damages.
Sometimes juries get carried away. It's natural to sympathize with a patient who has suffered and it's probably natural not to sympathize with insurance companies. Putting a lid on awards puts a lid on sympathy payments. That's a good thing because sympathy isn't the same as fairness. On the other hand, once in a while a big award is exactly what justice calls for. And the proposed lid does away with the really big awards.
At the other end of the spectrum, lids do nothing to achieve justice for patients who've been hurt but not badly enough to get a lawyer interested. Suppose your doctor makes a mistake and as a result you're out of work for a couple of weeks. You can file a claim with the doctor's malpractice insurance carrier. If you're lucky, the insurance company might write you a check for your lost wages. But if it doesn't, you're pretty much out of luck.
Overall, according to one Harvard study, out of every 15 patients injured through medical negligence, 14 never receive a penny in compensation.
Yes, damage caps will save some money. Damage caps won't really fix what's wrong with the system.
Medical liability reform differs from other areas of tort reform for two reasons. The first reason is that it's incredibly hard for a jury to avoid ruling based on sympathy in a medical case. The second reason is that a judge who regularly hears medical liability cases gains an expertise that even the most dedicated jury can't hope to match.
An alternative to damage caps that's starting to get attention around the nation is a system of special health courts. Instead of a malpractice case going in front of a judge who heard a case about the location of a property line between neighbors last week and who's going to be hearing a drug case next week, malpractice cases would go to a judge who hears nothing but health related cases. Or maybe to a small panel of judges.
The system would eliminate jury trials except in extraordinarily unusual circumstances. This eliminates the "jury lottery" aspect of the current system. And in contrast to the damage-caps approach, judges would retain the ability to sock it to those who really have it coming to them.
Surprisingly, replacing juries with judges may lead to more democratic oversight of the system. Right now we have nothing to say about whether we like how cases are being decided. A jury comes in, hears one case, and that's the end of it. The public has no recourse. Judges are elected. If a judge is seen as being biased or just not very good, we can see he doesn't get re-elected.
Having specialized courts and judges adds flexibility. We can hold fast, informal hearings for small-dollar cases and while having full, formal hearings for mega-cases. We could even have a health small claims court. If you've lost a couple of weeks' wages and you think your doctor is to blame, you go in front of a judge and tell your story -- maybe even without a lawyer for a really small case.
The idea of an expert medical court system was endorsed this July by Senator Bill Frist, who was a heart and lung transplant surgeon before he became the U.S. Senate Majority Leader. This is a national issue, but we in Washington get to decide on our own legal system. It's time for innovation, time for the legislature to tackle the malpractice issue. Specialized courts -- not arbitrary damage caps - is the place to start.
###
Dick Startz is Castor Professor of Economics and Davis Distinguished Scholar at the University of Washington. He can be reached at econcol@u.washington.edu.
This column appeared in the following publications:
Bellingham Herald, Oct. 17, 2004
Everett Herald, Oct. 17, 2004
Tacoma News-Tribune, Oct. 17, 2004