America's factitious political battles should not get in the way of the rights of injured people. That principle of basic fairness must be the point of departure as the notion of "tort reform" once again becomes a topic of political debate.
No one will deny that medical costs in this country are high. But it just isn't true that the key to controlling them is to place limits on the ability of injured people to recover the compensation they deserve for injuries caused by medical malpractice. It would be far better to insist on safer practices in the delivery of medical care.
Clamping down on jury awards is not some sort of silver bullet for bringing healthcare costs down. Several studies have estimated the cost of lawsuits at only about 2 percent of America's healthcare spending.
There is no reason to doubt the legitimacy of those lawsuits, given the enormous number of medical errors that occur every year. Most states also have stringent procedural requirements that require expert testimony before a medmal case can even go forward.
Nonetheless, Congress is considering a bill called H.R. 5 that would supposedly lower medical malpractice insurance costs, and thus help consumers. Would it really do that?
Proposed Cap on Pain and Suffering
H.R. 5 - the Help Efficient, Accessible, Low-Cost, Timely Healthcare (HEALTH) Act of 2011 - would impose a cap of $250,000 on non-economic damages - pain and suffering. Introduced by Representative Phil Gingrey (R-Ga), H.R. 5 would also cap attorneys' fees by instituting a sliding fee scale.
To be sure, in the current economic climate, all reasonable cost saving proposals should be considered. But H.R. 5 isn't reasonable, given the human costs that would come from limiting awards to injured people.
Why H.R. 5 Misses the Mark
Medical malpractice cases serve multiple purposes. One is holding doctors and medical staff accountable for negligent conduct that causes injuries. Another is providing the compensation that people harmed by those injuries need to move forward with their lives. The ability of injured patients to question and hold negligent doctors and medical staff accountable creates a safer medical environment for all.
The overwhelming majority of medical malpractice cases are far from frivolous. Due to the enormous costs involved in bringing a medical malpractice case, most plaintiffs' lawyers are careful not to file lawsuits that are questionable.
Speaking against H.R. 5, Representative Linda Sanchez (D-Cal.) posted on her website that H.R. 5 "deplorable" for limiting the rights of an injured victim.
In essence, H.R. 5 seeks to "save" money at the expense of the innocent victims of negligent doctors and medical staff. Saving money in tough economic times is indeed important. But adding insult to the already injured is not the right way to do it.
From our law offices in Hackensack and Manhattan, Kirsch Gartenberg Howard LLP has served individuals and businesses across northern New Jersey, including Bergen County, Essex County, Union County, Middlesex County and Passaic County, and the five boroughs of New York City since 1984.
