Back when Gregory Dolin, MD, JD, was a medical student, the party line among his colleagues was that damage caps were a good thing.
However, as a law student, and now as a law professor, “it becomes apparent that it’s not that simple,” says Dolin, co-director of the Center for Medicine and Law at University of Baltimore.
One concern is that state damage caps can result in plaintiff attorneys deciding not to pursue legitimate cases. Malpractice lawyers often take cases on contingency. “As a result, they are more likely to take cases where the compensation is larger,” Dolin explains.
In some cases, the medical compensation is negligible, but the potential for pain and suffering damages is large. “Given that these noneconomic damages would be capped, it becomes not as profitable to take those cases,” Dolin observes.
Damage caps render many cases economically unfeasible for plaintiffs’ counsel to pursue. Nonetheless, many ED providers still fear losing what may be an otherwise baseless malpractice claim. David Sumner, JD, says this is highly unlikely: “Competent med/mal lawyers do not file specious claims, and carriers do not settle them. Tort reform legislation in most states virtually eliminates unworthy claims from being filed.”
While most ED providers view tort reform favorably, it looks different from the plaintiff’s perspective. “We cannot get carriers to settle even righteously meritorious claims until two to three years into litigation,” Sumner explains.
Pursuing a typical ED malpractice claim costs well over $50,000, says Sumner, a Tucson, AZ, medical malpractice attorney. The plaintiff lawyer risks losing all that money, as well as hundreds (or thousands) of hours of professional time.
Thus, ED providers “do not need to be fearful of inexperienced med/mal lawyers pursuing nonmeritorious cases,” Sumner says. “The carriers virtually always defend those cases successfully.”
Sumner considers a meritorious ED case one with catastrophic injuries or death, supported by well-credentialed experts, where the care was not in conformity with national or organizational guidelines, peer review literature, or the hospital’s own published written policies and procedures. “Even extremely meritorious cases are challenging to win as a plaintiff,” Sumner notes. “Tort reform has changed the litigation landscape.”
Some states give full and/or partial immunities to ED providers, or require that negligence be proven by a standard of “clear and convincing evidence.”
“This can be an impossible burden of proof,” Sumner says. “The immunity statutes have caused virtually all ED cases to be unprosecutable.”
Even if an ED patient is seriously harmed by negligent care, there may be no hope of a fair recovery because of damage caps. “Even great cases have settlement or verdict recoveries that do not fairly match the true severity of injuries and damages due to unfair application of damages caps,” Sumner says. If the plaintiff is retired, no lost earnings claims exist. Sometimes, the medical expenses related to negligence are inconsequential. “No reasonable lawyer is going to risk $50,000 to $100,000 in expenses to litigate a case for two to three years when the maximum recovery available is $250,000,” Sumner suggests.
Policymakers hope damage caps will stop physicians from practicing defensive medicine and over-ordering tests. However, in states with damage caps, spending on cardiac stress tests and other imaging tests rise, yet there is no increase in cardiac interventions, according to the authors of a recent study.1
“Damage caps do have a strong effect in reducing the number of claims and payout per claim,” says Bernard S. Black, JD, one of the study’s authors. Black and colleagues did not look specifically at ED claims. “But the strong overall pattern should apply there also,” adds Black, professor at Northwestern University Pritzker School of Law. Malpractice premiums in states with damage caps have declined somewhat, “but by much less than they should have, given the drop in payouts after caps are adopted,” Black observes.
- Moghtaderi A, Farmer S, Black B. Damage caps and defensive medicine: Reexamination with patient-level data. J Empir Leg Stud 2019;16:26-68.