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Rick Shapiro
Rick Shapiro
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Debunking Myths About Medical Malpractice — Again

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Each year brings new, and I hope, conclusive evidence that medical practice insurance, lawsuits and so-called “defensive medicine” add little to the total spent on health care in the United States.

Just as reliably and regrettably, every year also brings the same old demands that drastic actions be taken to block victims’ access to the courts and lower the amounts victims can claim in compensation for pain and suffering. The most recent push to doubly victimize people injured or killed by a doctor’s negligence, a nursing home staffer’s neglect or a drugmaker’s disregard for patient safety is being made in Florida.

As reported in the Tampa Tribune, health industry decision makers who originally convinced Florida legislators to cap noneconomic damage awards to plaintiffs in malpractice cases at $500,000 want that maximum reinstated. A state court in 2014 lifted the cap, ruling that limiting people’s ability to seek higher awards for pain and suffering constituted a denial of their right to equal justice and treatment under law.

Florida’s state constitution was referenced by the court. As I’ve noted elsewhere, though, the Seventh Amendment to the U.S. Constitution also appears to make malpractice caps indefensible. Recognizing this in part, Virginia significantly lifted malpractice caps a few years ago. North Carolina maintains a $500,000 cap.

In asking state lawmakers for a (sadly nonironic) unconstitutional amendment to Florida’s constitution, the group of health policy consultants, whose members include¬†former U.S. health secretary Donna Shalala, claimed noneconomic damage caps were needed to keep health care practitioners’ malpractice insurance premiums low. That justification holds no water.

First, adding together every dollar spent on malpractice insurance, settlements and jury awards, and allegedly unnecessary tests and procedures, gets you a total representing slightly less than 1 percent of annual U.S. health care spending. findings on misdiagnoses have or could have harmed patients show that probably too few procedures are being done when the cause of an illness or infirmity is not immediately obvious. Second, insurance premiums paid by doctors have declined each year since 2004. Premiums are expected to continue falling.

Anyone who conducts any honest analysis cannot find a purely economic reason to cap medical malpractice awards. Further, anyone who considers what a person left disabled or dead by preventable health care mistakes deserves in monetary compensation should have trouble putting a strict limit on the amount.

Capping malpractice is unjust and indefensible. You’d think the overwhelming, and growing, evidence for these realities would be enough to quiet demands for that nonsolution to a nonproblem. But I suspect I’ll need to write yet another version of this column sooner rather than later.

EJL