Trial Lawyers Sidestep Malpractice Curbs

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An Oct. 9 Congressional Budget Office report found that a $250,000 cap on awards for pain and suffering awards would reduce health costs by $54 billion over 10 years, or 0.5 percent of annual health-care spending.

The trial lawyers, however, argue that there would be no need for damages if there were no mistakes. Based on studies of hospitals in two states, the Institute of Medicine of the National Academy of Sciences estimated in 1999 that from 44,000 to 98,000 people each year die of medical errors.

Subway Ads

The American Association for Justice, the trial lawyers' trade group, spent $100,000 to place ads in a subway station near the U.S. Capitol, and helped organize a day in October for malpractice victims and their lawyers to lobby lawmakers.

"Patients have a lot of influence with the Congress," said Linda Lipsen, an AAJ vice president.

The Center for Justice and Democracy, a New York-based consumer group, brought Kathy Olsen of Chula Vista, California, to tell Senator Barbara Boxer and Representative Bob Fillner, two Democrats from her home state, about her then-2-year-old son, who suffered blindness and cerebral palsy from a brain abscess not discovered because the hospital refused a requested scan. A jury awarded $7.1 million for pain and suffering, though a judge reduced that to the state's $250,000 cap.

"Who would have thought the law wouldn't have protected a 2-year-old who got hurt like this," Olsen said.

Democratic lawmakers also heard from Representative Bruce Braley of Iowa, a former trial lawyer who helped lead the debate against caps. He said Congress shouldn't substitute its judgment for that of voters.

'Same People'

"The same people who elect us are the same people who serve on juries in these cases," Braley said.

Democrats said caps weren't even on the table after Obama said he wouldn't support them. Such limits could be "unfair to people who've been wrongfully harmed," Obama told the AMA in Chicago on June 15.

Obama "said he did not want caps but there were other things you could do," said House Energy and Commerce Committee Chairman Henry Waxman, a California Democrat.

As a possible substitute, both versions of the health-care legislation encourage states to find ways to curb frivolous claims. Among the ideas: Specialized courts for malpractice cases and having doctors apologize and offer compensation before a suit is filed, Rohack said.

"We know caps work," Rohack said. "What we don't know is do these alternatives work."

To contact the reporter on this story: Jonathan D. Salant in Washington at jsalant@bloomberg.net.