Caps on Malpractice Awards Term Paper

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rising cost of healthcare have many wondering what can be done to make healthcare affordable. Many believe that a prime source of the rising healthcare cost is the exorbitant amount of money that some have received in malpractice suits. Many experts contend there should be a limit or cap on the amount of money that people can receive in a malpractice suit. The purpose of this discussion is to explain if there should be a cap on malpractice awards.

Why Caps Should exists

The main reason why Caps should exist is associated with the cost of malpractice insurance for doctors. In recent years, many doctors have been forced to stop practicing medicine because of the high cost of malpractice insurance. According to an article entitled "The Doctors' Big Squeeze: Huge Increases in Medical Malpractice Insurance Rates Are Driving Doctors out of Business. What's the Answer" caps on malpractice awards will be the only way to reduce the cost of malpractice insurance. The article explains that many doctors are practicing without malpractice insurance because they cannot afford the premiums. This is a potentially dangerous situation because if they are sued it will be difficult for a patient to collect any amount of money and in some cases, qualified physicians have been forced to stop practicing medicine.

The article explains that when the St. Paul insurance company decided it would no longer cover medical malpractice because of the huge awards that were being awarded, it caused an increase in the cost of malpractice insurance for doctors. According to the article 'Insurers insist that their greatest burden is the hefty awards that juries are increasingly giving to plaintiffs. Higher jury awards contributed to a 33% jump in claims paid by insurers from 2000 to 2001 alone. "We actually don't really lose that many cases when we come to trial," says Smarr of the Physicians Insurers Association ... In fact, 70% of the claims filed against a doctor either wind up in no payment at all, or the cases are dismissed entirely ... The trouble is the size of the awards, says Smarr, which have been growing "by about 7% for the last 10 years. And that's about 3% more than the rate of inflation (Boulard)."

Indeed the award amounts that some are receiving from malpractice suits have had an adverse affect on many. Another article explains that many insurance companies simply settle outside of court because they do not want to take the chance of going to trial and a jury awarding a large amount of money (Trussell). The author explains that lawyers are also to blame because "In many states, the trial lawyers have seen to it that there is no cap on the amount of punitive and "pain and suffering" damages a softhearted jury may award a plaintiff. In the past eight years, the average jury award has tripled in medical malpractice cases. In product liability cases, it has quadrupled. That's why insurance companies try to settle out of court (Trussell)."

The problems associated with malpractice awards came to the forefront in 2002 when a group of 60 specialists at the University Medical Center in Las Vegas refused to work because of the high cost of malpractice insurance. Their actions caused the hospitals emergency room to shut down (Boulard). This gave Nevada and the nation a glimpse of the public health crisis that could ensue if caps are not placed on Malpractice Awards. In the case of Las Vegas, legislatures came together and placed a $350,000 cap on the amount of money that a patient could receive as a non-economic award in a malpractice case (Boulard). However, lawmakers did attach to exceptions to the bill including "one involving cases where there is "gross malpractice." The other where there is "clear and convincing" evidence that an award should exceed the $350,000 cap (Boulard)."

The physicians that suffer the most from malpractice awards and the subsequent increase in malpractice insurance are those in high risks specialties such as orthopedic surgeons, emergency medicine doctors, and obstetrician-gynecologists (Ramstack). An article found in the Washington Times explains the plight of one obstetrician in West Virginia. The doctor explained the he is paying out in malpractice insurance, the same amount that he is making as an obstetrician. Another physician stated the following concerning malpractice awards "We are currently being sued out of existence," Dr. VanDerVeer said. "People have to choose whether they want these lawyers to make gazillions of dollars in pain and suffering awards or whether they want health care (Hurt).

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Inevitably, the people that suffer the most when there are no caps on malpractice awards are patients. Patients will suffer because if this situation is allowed to persists there will be no physicians to care for them. Access to care is a concern for many. Access to care is particularly significant as the American population is aging rapidly. In addition, many assert that the high cost of malpractice insurance has caused an increase in the cost of health insurance for individuals and families. This means that the American people are paying more for their monthly premiums and in many cases; people cannot afford to have health insurance at all.

Why there should not be caps on malpractice awards

AT the other end of the spectrum, that there are those that believe that it would be detrimental to patients. They contend that placing caps on malpractice awards will shield negligent doctors from being held accountable for their mistakes. In fact, According to a book entitled Medical Malpractice: A comprehensive analysis, there are many adverse outcomes that occur in patients as a result of malpractice. The book asserts

"One in three patients admitted to university hospitals are estimated to have suffered an illness, complication, or injury during medical treatment. One fourth of these adverse outcomes were considered serious. Often adverse outcomes can be treated. However, some adverse outcomes, such as death or permanent injury, are irreversible. Outcomes can be categorized into preventable and unpreventable. Preventable outcomes could be the result of negligence of a care provider. According to a California study, 4.5% of all hospital discharges resulted in adverse outcomes, with 17% of them caused by negligence. According to a study done by the Harvard Medical Practice in 1984, 3.7% of all hospital discharges resulted in adverse outcomes. Surgery is a major cause of adverse events (Bhat)."

In addition, they contend that placing caps on malpractice awards may prevent patients from getting the monetary awards that match the economic and traumatic impact of the injuries they have incurred (Stewart). They assert that in some complex cases it cost more to sue than the caps will allow as an award (Boulard). An article found in Insight on the News asserts that caps are not good for patients because they "blindly applies regardless of the nature and severity of the injured party's pain and suffering (Stewart). " The author asserts that placing caps on malpractice awards undermines the effectiveness of having a jury. The article explains "Juries, who hear all of the evidence and are in the best position to determine the seriousness of the damage to an injured consumer, are stripped of their role as evaluators of just compensation. Moreover, caps allow the wrongdoer to avoid responsibility for the harm he or she has caused (in law, a "tort") (Stewart)."

In addition, sometimes people fail to realize that when large amounts of money are awarded in malpractice suits; a great deal of it goes towards paying doctors and lawyers. One patient who was awarded $10 million in a malpractice suit explains 'The suits drag on for years in court. Lawyers' fees and court costs eat up a substantial part of the settlement. And fundamentally, even after a win, the tragic situation that brought them into the courtroom is essentially unchanged, they said ... Everyone assumes I got handed a check for $10 million," said Tiedje, who said he received "a little over half" that amount after paying medical bills and attorneys ... I still would like to have the body back I had before the accident," he said. "People look at me and think 'He looks fine.' It's kind of deceiving. They don't see what I feel (Spak)."

In essence, those that oppose a cap on malpractice awards believe that negligent doctors will not be held accountable for their actions. In addition, they believe that the awards only give the patient what is due to them based on the evidence that is presented to a jury. Many states that already have caps on medical awards such as California are under constant criticism because there is little recourse for people who suffer severe medical problems or death as a result of the negligence of doctors.

Discussion and Conclusion

Seemingly, the solution to this issue is to place caps on malpractice awards. However, there must also be exceptions to such caps in extreme cases where negligence is apparent and the impact of such.....

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