Monday, January 24, 2011

"In tort system, cap screws YOU!"

Just in time for the Fifth Circuit's certification to the Miss. Supreme Court of whether tort damage caps are constitutional, Kevin Drum provides a useful post on med-mal caps in particular:
Medical malpractice cases are complex and expensive. Hospitals won't voluntarily admit to mistakes, and they won't voluntarily make their full records available unless they're forced to. They'll especially not do this if they know perfectly well that damage caps make it vanishingly unlikely that they'll have to deal with anyone but distraught family members who have no idea how to work the system. * * *

And just to address the obvious questions: No, there's been no explosion in medical malpractice suits over the past 20 years. Nor has there been an explosion in payouts. Nor are medical malpractice suits a major component of rising healthcare costs. Medmal reform is a good idea, but mainly to make it fairer. A reformed system that actually worked properly would cut down on frivolous lawsuits but would probably increase the number of legitimate complaints that never see the light of day under current rules. More here.
I think that's pretty much right. If anything, med-mal is a particularly *poor* target for damage caps: the defendants have many more protections than do ordinary tort defendants. Any caps should prevent only runaway verdicts that no one can really imagine being justified: $10 million, $20 million, something like that. A $500,000 med-mal cap (while twice that of California!) is hard to defend as policy. Whether it violates the Mississippi Constitution, of course, is a separate issue.

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