The Bush Administration’s Malpractice Misdiagnosis

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President Bush has endorsed a "framework for addressing the medical liability crisis" with six elements. The written outline released by the White House on January 16 lacks specificity, but in his speech he endorsed legislation from the last Congress, H.R. 4600. That bill shows the proposal to be a framework of unfairness. President Bush would:

Cap "non-economic" damages. Awards for so-called "non-economic" loss (injuries such as lost child-bearing ability, disfigurement, and paralysis) compensate for the human suffering caused by medical negligence and defective medical products. Typically, such damages exceed $250,000 only in cases involving permanent significant injuries. Thus, the cap will not affect patients with minor injuries; instead, it targets only victims of injuries such as deafness, blindness, loss of limb or organ, paraplegia, or severe brain damage. To understand the arbitrariness of the cap, consider: A 20-year old plaintiff left paralyzed by a negligent surgeon would expect to live another 56 years. The cap would entitle him to just $12.20 in damages for pain and suffering for each day of the rest of his life.

Restrict punitive damages. Punitive damages are rarely awarded in medical malpractice cases, but the threat of punitive damages is important to deterring reckless disregard for patient safety by doctors, hospitals, HMOs, nursing homes, and drug and medical device manufacturers. H.R. 4600, the bill the Bush Administration endorsed last year, would have rewarded these special interests with a benefit that even the conservative 104th Congress rejected—a complete ban on punitive damages for reckless conduct.

Deny collateral source benefits to plaintiffs. Collateral source benefits are benefits paid by the plaintiff’s health or disability insurance and programs such as Social Security Disability that are funded by payroll taxes. Everyone knows that the premiums for these benefits are effectively paid by employees through reduced salaries and wages—yet the Bush proposal would strip these benefits from a worker and transfer them to the defendant.

Let defendants control payouts for future damages. By instituting a "periodic payment rule" for future damages, the Bush proposal would allow defendants and insurance companies to string out payments for future damages over the life expectancy of the victim, rather than make them pay up front. This is money the jury has determined rightfully belongs to the plaintiff, yet defendants and insurers would be able to invest and earn interest on the vast majority of a plaintiff’s damage award. Victims would be left to cope with unexpected needs or changing medical costs and increased transportation and housing costs.

Shorten the statute of limitations to one year after discovery of the injury. This severe limitation would extinguish many meritorious claims. Although in most cases an injury is immediately apparent, a victim may not know until much later whether the injury was caused by malpractice. The law in most states starts the limitation period running from the discovery of the malpractice, not discovery of the injury.

Leave patients holding the bag when a doctor is insolvent.    The doctrine of joint and several liability says that when two defendants, such as a doctor and a hospital, are both found liable for negligence, a plaintiff may collect the entire award from either of them if necessary. President Bush would change this rule, and leave patients with no recovery for the share of damages assigned to an uninsured, underinsured, or bankrupt defendant.

Let drug companies off the hook? Although the Bush proposal does not specifically mention it, the House Legislation he endorsed (H.R. 4600) would not only protect doctors from liability. It also would protect other special interests, including hospitals, HMOs, nursing homes, and drug and medical device manufacturers.