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Doctors' focus on an inadequate $250,000 cap on noneconomic damages is diverting attention from serious reforms of malpractice insurance.
To an observer amidst the striking physicians outside the Florida Capitol last week, it was if they had all forgotten the cardinal rule of medicine, "First, do no harm." Their grievances over malpractice insurance are real and cry for relief, but what they demand would replace one wrong with another.
There's no doubt that a $250,000 ceiling on noneconomic damages - the so-called "pain and suffering" factor - would inhibit jury awards and settlements. Whether the insurance industry would share any of the rewards with their medical clients is much less certain; why Florida doctors are placing such blind faith in a historic adversary is truly a mystery.
But neither is there any doubt that this would disproportionately affect the most vulnerable of Florida's people: the elderly, the very young, full-time homemakers, the unemployed. People who have little or no income, whatever the present reason, are hard-pressed to prove any economic damages beyond the cost of their care in litigation for wrongful injury or death. The category of non-economic damages may be the only source of recovery. An arbitrary limit, especially one that's so low, can be a back-door scheme to see to it that such people can't even find lawyers to take their cases. Like it or not, American tort law is a bounty system. The $250,000 figure in question is the same sum California adopted by initiative in 1976. However generous that may have seemed at the time, it is flinty and plainly inadequate today. The current value, adjusted for inflation, would be just over $800,000, which is the threshold at which a fair-minded discussion might begin. To be reasonable, such a search for compromise should also include the possibility of exceptions in cases where the provable economic damages - wage loss, cost of care and so forth - would be less significant.
Consider, for example, the well-publicized case of a Minnesota woman, 46, who needlessly underwent a double mastectomy (with severe postoperative complications) because a biopsy sample from her healthy breast had been confused with that of a patient who did have cancer. Should the cost of that offense be limited to $250,000?
When a journalist posed that question to one of the striking Florida doctors last week, the disquieting answer was yes; she should be compensated only "for counseling," the physician said. Would he assign no value to the breasts? "America is the only country in the world that awards damages for things like that," he replied.
Most Floridians, we think, would prefer to keep it that way. Yet it is in everyone's interest to have a balanced legislative remedy to the malpractice crisis before it further affects the availability and affordability of health care.
The Legislature should do everything within reason to make insurance more affordable for good doctors and well-managed hospitals. It should also do everything within reason to mitigate the fundamental reason malpractice claims are filed. If there were less malpractice, there would be less litigation.
The Senate's proposed legislation goes much further than the House's bill, which embraces the questionable $250,000 cap, in addressing the roots of the crisis. Perhaps the most significant of the Senate measures is SB 1154, by Sen. Durrell Peaden Jr., R-Crestview, which would require all 44,000 state-licensed physicians to purchase excess liability coverage of up to $2-million a claim from a new not-for-profit state facility. This would spread the risk of large verdicts so that no one's premiums ought to be too high.
Peaden, it is worth noting, is a physician who retired from general practice only recently. In his view, nothing would be better for doctors than this new insurance pool; nothing would do them less good than an arbitrary cap on damages.
Other vital bills in the Senate package include SB 1912, which requires patients to be notified of adverse incidents, allows hospitals and surgical centers to earn quality improvement certificates, and enables professionals to take part in peer review and patient safety panels without risk of being sued by doctors whose conduct they criticize; CS (committee substitute) for SB 562, which creates a Florida Center for Excellence in Health Care and empowers the medical disciplinary boards to select hearing officers with particular expertise in medical issues and to reject or modify findings of fact in quality-of-care disputes; and SB 2120, which forbids secret settlements in malpractice cases and requires mediation before lawsuits are filed.
Though it was Senate President Jim King who faced the jeers and catcalls of the striking doctors, the truth is that resistance to the $250,000 cap runs deep and wide in the Senate, and not just because trial lawyers invested campaign funds wisely. Senators are older and more experienced than the easily led and often misled House. They have more familiarity than the other chamber or the governor with simple solutions that backfire.
It would be a tragedy if the medical lobbies' refusal to consider compromise on one point, the $250,000 cap, led to the defeat of so many other helpful proposals. In that event, however, the blame for failure would be for the doctors and their chief ally, the governor, to share.