Your congress is currently considering House Bill 1215, which is a really terrible proposal related to medical malpractice cases. The most important things the law would do are these:
- $250,000 cap on damages for lost enjoyment of life and physical pain;
- Bar any claims that are not brought within 3 years of the procedure (including those for which the mechanism of injury was not discovered in the first three years);
- Cap attorney fees at 15% of any amount recovered over $600,000;
- Prevent doctors from being liable for negligently prescribing incorrect drugs and devices that have been allowed on the market by the FDA;
- End laws that make all negligent defendants jointly liable for the total harm caused when the plaintiff is an innocent victim.
My first thoughts whenever I see proposals like this is: why doctors? Why do doctors get special treatment by our laws in addition to exorbitant salaries? Why do for-profit doctors get to say they work at non-profit hospitals? If these laws make so much sense, why don’t we see them for accountants? Architects? Insurance brokers? Estate planners? Financial advisers? Pilots? Truck Drivers? Engineers? Why would we want to remove incentives to act carefully from the people whose negligence can harm us most?
But those initial thoughts aside, each of these individual ideas is terrible. The problem is, none terrible idea in the abstract. You have to look at how each would affect actual people to understand why it’s such a bad idea. To do that, I’m going to look at each of these issues one at a time over the next few weeks. Today we’ll start with the first terrible idea: damages caps on “noneconomic damages”.
Noneconomic damages include things like lost enjoyment of life from an injury: for a man who loved to fly fish but can no longer leave his home, there is compensation. They also include physical pain: for a woman who deals with constant pain during urination because of damage to her urinary tract, there is compensation. Discomfort is addressed by noneconomic damages: for those who can no longer sleep for more than an hour at a time because they cannot get comfortable, there is compensation. And there is compensation for damaged relationships: when a husband and wife can no longer have sex because one is disabled, noneconomic damages address that. When a spouse is no longer there for comfort or companionship, there is compensation.
Noneconomic damages are the realest form of damages, because they concern the things people actually experience. They are the opposite of “economic” damages — things like lost wages and incurred treatment costs — which are simply counted up with invoices and lost pay checks.
The most important thing to remember about noneconomic damages are that they are what keeps us all equally valuable in the eyes of the law. When only economic damages are considered, a blue collar worker’s life is simply not worth as much as a wealthy person’s life. A blue collar worker will not have the same wage loss as a wealthy person. A blue collar worker won’t be able to afford the same high quality follow-up treatments as a wealthy person. So their economic damages will never be as high.
But we all suffer in the same ways. We all experience pain. We all find joys in our lives, and we know the importance of those joys when they are taken away from us. We know how it would feel if our husband or wife were suddenly taken away from us for no good reason. Through non-economic damages we can tell our doctors (and bus drivers, and airplane pilots, and manufacturers) that each life is valuable. So they need to be careful even when no wealthy person’s life is at stake.
The proposed law would remove that incentive.
Imagine a stay-at-home mother of three with an easily diagnosable, highly treatable form of cancer. Imagine the cancer is missed because a for-profit hospital constantly overworked its doctors. Instead of an easy surgery to remove the cancer, she spends the next ten years getting slowly worse. Though she used to exercise frequently, she can’t anymore. She rarely sleeps through the night, which puts pressure on her relationships with her family. She can’t do what she used to do at the home. Her children become her caretakers, which humiliates her and makes her feel worthless. The pain slowly grows until it is constant. She realizes her body won’t sustain her for long. She looks for a lawyer to take her case. She wants to stop this from happening to others. She wants to provide for her family. She wants compensation for what she, and her husband, and her children, have lost.
With the new law in effect, the lawyer now has to look at a case like this differently. The cancer causation expert will run at least $50,000. Another expert will be needed to show the hospital screwed up with its policies. Another $50,000. A third expert to show the cancer should have been caught. Another $50,000. Court reporters, deposition trips, paying to depose the hospital’s experts will all add to the total. The lawyer estimates the cost will be at least $300,000 if the case goes to trial. That doesn’t factor in his normal overhead: leased office space, legal research, staff. The woman’s total medical bills are $500,000 to date, with little more to come. But the insurance company had a deal with the hospital so it only paid 250,000, even though the woman was billed all $500,000. She has no provable lost wages, so that means her “economic” damages are just $250,000.
In other words, she’s got a case worth $500,000 total: $250,000 economic and $250,000 noneconomic. Let’s say the lawyer takes the case on a 40% fee. Even assuming it’s a guaranteed win, it’ll take an incredible amount of his time and effort. And his best case scenario is the $500,000 win, which will let him repay the $300,000 in costs advanced and take the $200,000 as the 40% fee. But the woman and her family will not see a dime in that situation. And regardless, the lawyer knows he could make more on other non-medical cases, with much less risk. So the case does not go forward.
So let’s say the lawyer cuts his fee and takes only 20% ($100,000). That would mean sinking $300,000 into a case that he can only hope to make $100,000 in profit on. That won’t keep the lights on. Even if he wins half of the cases like this, it’s a losing proposition. And the $100,000 the woman actually takes home is nowhere near what would be just compensation for the pain, suffering, discomfort, and fear. It’s nowhere near just compensation for her children losing a mom, her husband losing a wife.
In other words, capping the noneconomic damages means good cases won’t be brought. And that means bad behaviors won’t get caught.