In November, 1997, the U.S. House of Representatives targeted the District of Columbia with some of the cruelest medical malpractice liability restrictions in the country. The bill would have severely weakened the legal rights of all D.C. consumers who are injured by malpracticing doctors, manufacturers of defective medical products, and even health insurance companies that deny insurance benefits in bad faith. No state in the country has enacted such Draconian and discriminatory measures.
As a result of a compromise proposed by the U.S. Senate, the D.C. Financial Control Board has been asked to conduct a study to “evaluate the issue of medical malpractice reform and report to Congress by March 1, 1998, recommendations on medical malpractice reform for the District.”
No one knows what the Control Board will find or recommend to Congress. However, if they do make recommendations for changes to our medical liability laws consistent with what has been recently proposed in the House, those actions will be very detrimental to improving the quality of health care and will penalize some of the most vulnerable members of our community — the sick and the injured. They would also dramatically reduce the ability of the civil justice system to deter future wrongdoing that threatens consumers’ health and safety. Less deterrence will lead to more injuries, more uncompensated victims and greater overall costs to taxpayers.
The most damaging provisions proposed in the House bill included:
- Cap on non-economic damages at $250,000 and elimination of joint and several liability for non-economic damages. Awards for non-economic loss (injuries such as lost child-bearing ability, disfigurement, and loss of sight) compensate for the human suffering accompanying injuries caused by medical malpractice. An arbitrary cap on such damages would be devastating to those who suffer most. Moreover, the bill makes an unfair distinction between economic damages (e.g. medical expenses and lost wages) and non-economic damages. By limiting non-economic damages, this legislation makes a value judgment that high wage-earners are more deserving of compensation than are low-wage workers, seniors, children and women who work in the home.
- Cap on punitive damage awards at $250,000 or three times the amount of economic loss, whichever is greater. In recent times the media has reported on doctors amputating the wrong leg; removing the wrong breast; removing a healthy lung; and killing a patient by negligently administering a lethal dose of a cancer-fighting drug. In these kinds of cases, the availability of punitive damages should not be restricted. Moreover, 68% of punitive damage awards in medical malpractice cases are awarded to women, most often in cases of sexual misconduct by health care providers. According to a Public Citizen study “Physicians Disciplined for Sex-Related Offenses,” released this June, approximately four of every 10 physicians disciplined for sex-related offenses continue to practice medicine because of overly-lenient actions by regulatory agencies. Without adequate regulatory enforcement, the availability of adequate punitive damages is critical to holding such doctors accountable.
- Prohibiting punitive damages in cases involving drugs or medical devices that are approved by the Food and Drug Administration. Prohibiting punitive damage based on the excuse that the FDA has approved the product could be disastrous for D.C. consumers. FDA pre-market approval and standards set by the agency are minimum safety standards. At most, they establish an acceptable current level of safety, and may only establish a lower safety floor bred by many concessions to powerful lobbies. Manufacturers can discover product dangers after a drug or device is marketed and resist modification or recall without being guilty of withholding or misrepresenting information. This provision could protect manufacturers of some of the most notorious FDA-approved products which have wreaked havoc on consumers, such as defective pacemakers and heart valves that have led to hundreds of deaths and injuries.
- Periodic payments for future losses over $50,000. This provision is tantamount to enacting a “payment plan for wrongdoers.” Periodic payments penalize over time victims who are hit soon after an injury with large medical costs and those who must make adjustments in transportation and housing. In addition, because these payments are not adjusted for inflation, they rapidly pay for fewer needs of the innocent victim as time goes on.
These provisions will do nothing to address the problem of health care costs in the District. Medical malpractice insurance costs make up a minuscule part of overall health care costs. For example, in 1991, total health care costs in the United States were about $750 billion; medical malpractice premiums that year were about $4.8 billion, or .6 percent of total health care costs. Moreover, according to a recent study by former Federal Insurance Administrator and Texas Insurance Commissioner Robert Hunter of the Consumer Federation of America, over the last 10 years, medical malpractice premiums, when calculated in constant dollars, have fallen from $9.5 billion to $6.4 billion — a 31% drop in cost relative to general medical costs.
Rather than limiting victims’ rights, Congress should consider instead reforms to reduce medical malpractice and improve the quality of health care in the District. According to Public Citizen, the board which licenses doctors in D.C. has one of the worst records for disciplining malpracticing doctors. Better doctor discipline is essential to reducing the incidence of medical negligence. In addition, reform of the insurance industry would ensure sensible underwriting and thereby lower costs in the health care system. Insurance companies should charge rates based on a physician’s experience, so that the small number of doctors responsible for the most malpractice would pay higher premiums, and the majority of good doctors would pay less.
Approximately 80,000 deaths occur annually due to doctor negligence in the country — more than twice the number of motor vehicle occupants killed each year. With the growing concern over health care quality in this country, Congress should enact measures to increase patient safety in Washington, DC, not, as this bill would do, decrease the liability of dangerous health care providers, drug companies and medical device manufacturers.