Governor Cuomo’s 2011-12 budget contains a proposal to cap medical malpractice awards for non-economic losses at $250,000. Hospitals and doctors claim that their medical malpractice premiums are excessive, and only by instituting a cap on damages can they lower their premiums. This reasoning is flawed. Damage caps enable negligent doctors to evade their responsibility to their patients, and protect insurance company profits, while depriving harmed patients of justice when they have been injured by the neglect and carelessness of others.
One way to lower medical malpractice premiums, without sacrificing patient rights, is to institute federal and state regulations that not only require continuing education, but hold those in the medical field accountable for their mistakes. Recently, there have been numerous reports of patients who have suffered from overdoses of radiation. As a result of mistaken radiation overdoses, patients have suffered from burns, soft tissue injury, bone death, organ failure, and death. But these overdoses haven’t all occurred recently. Rather, the details were buried in hospital records and never reported to state health officials as required. In an article from January 2010, Walt Bogdanich of the New York Times reported that there had been 621 radiotherapy mistakes from 2001 to 2008 (Walt Bogdanich, Radiation Offers New Cures, and Ways to Do Harm, N.Y. Times, January 23, 2010). Yet, over the last 10 years, New York health officials have not disciplined any of the approximately 20,000 licensed technologists for work-related problems (Walt Bogdanich and Kristina Rebelo, X-Rays and Unshielded Infants, N.Y. Times, February 27, 2011). Allowing these technologists to continue to administer treatment, while their mistakes remain hidden from the public, subjects more patients to the dangers of over radiation and contributes to increases in malpractice premiums. For example, in 2008 a radiation therapist administered 10 times as much radiation as prescribed in one spot, and one-tenth the prescribed dose in another. As a result, the patient was too sick to continue chemotherapy and died several months later. The same therapist was later reprimanded in another case, and not only continues to work at the hospital, but has also trained other workers (Walt Bogdanich, Radiation Offers New Cures, and Ways to Do Harm, N.Y. Times, January 23, 2010). A cap on medical malpractice awards will only provide another layer of protection, allowing negligence to continue with even less accountability.
In a recent article, Thomas Kaplan examines the truth behind the claim that a cap on non-economic damages will reduce insurance premiums. Citing research conducted in California, a state that implemented a $250,000 cap on non-economic damages in 1975, it is clear that the proposed cap will not bring the big savings its supporters are predicting. In the ten years after California enacted the cap doctors did not see the cost of their insurance policies plummet. In fact, the total paid in premiums increased 176 percent (Thomas Kaplan, Lessons for Albany on Malpractice Limits, N.Y. Times, March 24, 2011). Ultimately, what researchers have found, is that limiting non-economic damages in malpractice cases has the effect of slowing the rate of growth in premiums (id.). It hardly seems fair to implement such a harsh cap on the damages that a severely injured patient can recover, when doing so will do so little for the doctors Governor Cuomo urges it will help.
Moreover, the repercussions to injured patients as a result of the cap are more extreme than they appear on the surface. Once the caps are in place, liability carriers will know the limits of their liability. Since New York is a state without effective and realistic bad faith actions, which would punish an insurance company for failing to negotiate in good faith, we can expect medical malpractice insurance companies to act as their counterparts in automobile liability insurance, where there is limited coverage. They know the costs of trial, and will offer settlements deducting what they know the trial will cost a plaintiff (for experts, etc.). In reality, the $250,000 cap will result in a cap on settlements between $200,000 and $225,000, from which attorneys’ fees must then be paid. As a result, victims with catastrophic injuries will receive only a pittance for compensation. But, doctors’ premiums will not significantly go down. Instead, the profits of insurance companies and the fat cat corporations, that own and manage hospitals, will soar. Profits that will be paid for by the uncompensated lives and pain of victims of malpractice.
Governor Cuomo’s proposed cap on medical malpractice damages is not the answer. Improving the quality of medical service and removing incompetent or dangerous doctors will lower insurance premiums and ensure patient safety. Continuing education requirements will make sure doctors are aware of recent developments, while real enforcement of disciplinary procedures will ensure that doctors who have committed serious offenses have their licenses revoked. The best way to lessen the malpractice burden on everyone is to lessen the amount of malpractice committed.