Damage caps do not stop frivolous lawsuits. Caps only affect the cases in which a jury of twelve people heard all the facts of the case and decided the injury was so severe and life-altering and the misconduct so blatant that a patient injured by the errors of a health care provider should receive more than $250,000. By definition, that is not a frivolous lawsuit, but a very serious one. Damage caps do not prevent frivolous lawsuits, but instead, ensure that the most catastrophically-injured patients will not be compensated as a jury instructs, thereby limiting their rights.
The strongest, most publicized argument for damage caps in medical malpractice cases is the mythical unavailability of doctors particularly in rural areas, who have supposedly been driven out of business due to soaring malpractice insurance premiums, due to outrageous jury verdict. As appealing as this argument may at first seem, it suffers from a fatal flaw. It is complete fabrication, utter hogwash.
Doctors are not fleeing states in droves, despite increasingly frantic and unsupported claims from the American Medical Association, the insurance industry and their allies. Independent assessments by state officials and the media have found that the number of doctors in many states, including Florida, Illinois, Ohio, Pennsylvania and Washington, has remained stable and in most, has actually increased. ( FL, Palm Beach Post Editorial, 7/16/03; OH, Toledo Blade, 7/17/04; PA, Allentown Morning Call, 4/24/04; WA, Seattle Times, 2/23/04).
The 2003 Weiss Report found that despite caps on economic damages in 19 states, “most insurers continued to increase premiums (for doctors) at a rapid pace, regardless of caps.” The report found that insurers failed to pass along any savings to physicians in states with caps by refusing to lower their insurance premiums, and that caps only slowed the increase in the amount of damages insurers were required to pay out. (Weiss Report, 6/3/03.)
Premiums are higher in states with caps than in those without. The average malpractice premium in states without caps was $35,016 in 2003. The average premium in states with caps was $40,381. (Medical Liability Monitor, 10/03)
Medical errors kill an average of 195,000 people a year with an associated cost of more than $6 billion per year – “[t]he equivalent of 390 jumbo jets full of people are dying each year due to likely preventable, in-hospital medical errors, making this one of the leading killers in the U.S.” (“In-Hospital Deaths from Medical Errors at 195,000 per Year, HealthGrades’ Study Finds,” Press Release for “Patient Safety in American Hospitals”, July 2004, www.healthgrades.com)
“Malpractice costs amounted to an estimated $24 billion in 2002, but that figure represents less than 2 percent of overall health care spending. Thus, even a reduction of 25 percent to 30 percent in malpractice costs would lower health care costs by only about 0.4 percent to 0.5 percent, and the likely effect on health insurance premiums would be comparably small.” (“Limiting Tort Liability for Medical Malpractice,” CBO, 01/08/04)
The median inflation-adjusted payout in all tort (personal injury) cases dropped 56.3% between 1992 and 2001, to $28,000. (“Civil Trial Cases and Verdicts in Large Counties, 2001,” Bureau of Justice Statistics, U.S. Dept. of Justice, 2004.)
The filing of personal injury cases has declined 4% since 1993. (“Examining the Work of State Courts, 2003,” National Center for State Courts, 2004.)
And, perhaps most revealing, the U.S. General Accounting Office (GAO), Congress nonpartisan research arm, examined the insurance industries publicity campaign of lawsuit-induced falling doctor availability. The GAO concluded that “many of the reported physician actions and hospital-based service reductions were not substantiated or did not widely affect access to health care…some reports have received extensive media coverage in each of the five states, we found that actual numbers of physician departures were sometimes inaccurate or involved relatively few physicians,” and at any rate, they “did not find access to these services widely affected.” Rather than concluding that large malpractice verdict drove premiums up (of which the GAO found no evidence), it instead noted that “…malpractice insurers experienced sharply reduced gains on their investments from 1998 to 2001.” (Medical Malpractice: Implications of Rising Premiums on Access to Health Care GAO-03-836.)
If you or a loved one has been injured or killed by bad medical care, you have a right to fair compensation, and you should not feel guilty about it. The wrongdoer should feel guilty. Medical malpractice cases in Illinois are very complicated cases, you need a good lawyer to handle the case for you and your family.
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