22
Medical Malpractice and Medical Malpractice and Legal Challenges to Caps Legal Challenges to Caps on Noneconomic Damages on Noneconomic Damages Wells, B., Ghazi, K., Sherif, A. Wells, B., Ghazi, K., Sherif, A. University of Florida University of Florida August 2 August 2 nd nd , 2004 , 2004

Medical Malpractice and Legal Challenges to Caps on Noneconomic Damages

Embed Size (px)

DESCRIPTION

Medical Malpractice and Legal Challenges to Caps on Noneconomic Damages

Citation preview

Page 1: Medical Malpractice and Legal Challenges to Caps on Noneconomic Damages

Medical Malpractice and Legal Medical Malpractice and Legal Challenges to Caps on Challenges to Caps on

Noneconomic DamagesNoneconomic Damages

Wells, B., Ghazi, K., Sherif, A.Wells, B., Ghazi, K., Sherif, A.University of FloridaUniversity of Florida

August 2August 2ndnd, 2004, 2004

Page 2: Medical Malpractice and Legal Challenges to Caps on Noneconomic Damages

The Medical Malpractice CrisisThe Medical Malpractice Crisis

““Our badly broken medical liability system Our badly broken medical liability system is responsible for higher costs for patients, is responsible for higher costs for patients, lower quality of care, and for decreased lower quality of care, and for decreased access.” – President G. W. Bushaccess.” – President G. W. Bush

Page 3: Medical Malpractice and Legal Challenges to Caps on Noneconomic Damages
Page 4: Medical Malpractice and Legal Challenges to Caps on Noneconomic Damages

Why do we need medical Why do we need medical malpractice laws?malpractice laws?

Medical ErrorsMedical Errors– Kill between 44,000 and 98,000 per yearKill between 44,000 and 98,000 per year– Medication errors harm about 7,000 per yearMedication errors harm about 7,000 per year

1 per 131 outpatient deaths, 1 per 854 inpatient1 per 131 outpatient deaths, 1 per 854 inpatient

Need for a way to deter medical errors and Need for a way to deter medical errors and to compensate those harmed by to compensate those harmed by substandard caresubstandard care

Source: Institute of Medicine – http://www.iom.edu

Page 5: Medical Malpractice and Legal Challenges to Caps on Noneconomic Damages

Introduction to Noneconomic Introduction to Noneconomic Damages CapsDamages Caps

TexasTexas– Became the first state to pass a constitutional Became the first state to pass a constitutional

amendment empowering the legislature to amendment empowering the legislature to limit damage awards in medical malpractice limit damage awards in medical malpractice lawsuits in September 2003lawsuits in September 2003

How did medical malpractice awards How did medical malpractice awards become so important that a state would become so important that a state would find it necessary to address the issue in its find it necessary to address the issue in its constitution?constitution?

Page 6: Medical Malpractice and Legal Challenges to Caps on Noneconomic Damages

Medical Malpractice StatisticsMedical Malpractice Statistics

An average of 10,000 medical malpractice An average of 10,000 medical malpractice lawsuits are filed each year.lawsuits are filed each year.

The median malpractice settlement in The median malpractice settlement in 1999 was $600,000 (63% increase from 1999 was $600,000 (63% increase from 1993).1993).

The median award in cases involving The median award in cases involving obstetricians and gynecologists in 2000 obstetricians and gynecologists in 2000 was $1M (43% increase from 1999)was $1M (43% increase from 1999)

Page 7: Medical Malpractice and Legal Challenges to Caps on Noneconomic Damages

Medical Malpractice StatisticsMedical Malpractice Statistics

In the 1994 – 1996 period, 34% of all In the 1994 – 1996 period, 34% of all awards were > $1Mawards were > $1M

In the 1999 – 2000 period, 52% of all In the 1999 – 2000 period, 52% of all awards were > $1Mawards were > $1M

In Mississippi there have been 21 verdicts In Mississippi there have been 21 verdicts of $9M or more since 1995 (one of which of $9M or more since 1995 (one of which was $100M)was $100M)

Before 1995 there were no verdicts > $9M.Before 1995 there were no verdicts > $9M.

Page 8: Medical Malpractice and Legal Challenges to Caps on Noneconomic Damages
Page 9: Medical Malpractice and Legal Challenges to Caps on Noneconomic Damages

The Actions of PhysiciansThe Actions of Physicians

MD’s are giving up practices or limiting MD’s are giving up practices or limiting practices to patients without health practices to patients without health conditions that increase litigation riskconditions that increase litigation risk

MD’s are moving to states with better legal MD’s are moving to states with better legal systems and lower insurance ratessystems and lower insurance rates

MD’s are changing their behavior to avoid MD’s are changing their behavior to avoid suitssuits

Source: Confronting the New Health Care Crisis – www.aspe.hhs.gov 7/25/02: HHS – Office of Disability, Aging, and LTC Policy

Page 10: Medical Malpractice and Legal Challenges to Caps on Noneconomic Damages

Defensive MedicineDefensive Medicine

Physicians are using defensive medicine Physicians are using defensive medicine as a form of risk managementas a form of risk management

This “malpractice pressure” has a more This “malpractice pressure” has a more significant impact on diagnostic testing significant impact on diagnostic testing than it does on treatment decisions. than it does on treatment decisions.

Page 11: Medical Malpractice and Legal Challenges to Caps on Noneconomic Damages

Defensive MedicineDefensive Medicine

This situation leads to unnecessary This situation leads to unnecessary medicine and increased costs:medicine and increased costs:– 79% of MD’s admit to ordering more tests79% of MD’s admit to ordering more tests– 74% referred to specialists74% referred to specialists– 51% have recommended invasive procedures51% have recommended invasive procedures– 41% have prescribed more medications41% have prescribed more medications

Page 12: Medical Malpractice and Legal Challenges to Caps on Noneconomic Damages

State ReformsState Reforms

Some states have reformed their litigation Some states have reformed their litigation systems and installed caps in a effort to lower systems and installed caps in a effort to lower the rise in premiumsthe rise in premiums– MICRA in CaliforniaMICRA in California

States with no caps have seenStates with no caps have seen– Increased health care costsIncreased health care costs– Increased insurance premiumsIncreased insurance premiums– Increased taxesIncreased taxes– Decrease in access to quality care resulting in threats Decrease in access to quality care resulting in threats

to quality of careto quality of care

Page 13: Medical Malpractice and Legal Challenges to Caps on Noneconomic Damages

Source: Confronting the New Health Care Crisis – www.aspe.hhs.gov 7/25/02: HHS – Office of Disability, Aging, and LTC Policy

Page 14: Medical Malpractice and Legal Challenges to Caps on Noneconomic Damages
Page 15: Medical Malpractice and Legal Challenges to Caps on Noneconomic Damages
Page 16: Medical Malpractice and Legal Challenges to Caps on Noneconomic Damages

Legal Challenges to Noneconomic Legal Challenges to Noneconomic Damages CapDamages Cap

Illinois Supreme Court – Illinois Supreme Court – Best v. Taylor Machine WorksBest v. Taylor Machine Works– Medical liability reforms passed three timesMedical liability reforms passed three times– Struck down by SC each timeStruck down by SC each time– Had a $500,000 cap in product liability, medical Had a $500,000 cap in product liability, medical

negligence, and wrongful deathnegligence, and wrongful death– 5-1 decision that core provisions of the law 5-1 decision that core provisions of the law

“improperly encroached upon the judiciary’s “improperly encroached upon the judiciary’s powers and violated the state constitutional powers and violated the state constitutional proscription against special legislation by proscription against special legislation by arbitrarily discriminating against injured plaintiffs”arbitrarily discriminating against injured plaintiffs”

– Defendants can be held joint and severally liableDefendants can be held joint and severally liable

Source: http://www.ama-assn.org/ama/pub/category/12386.html

Page 17: Medical Malpractice and Legal Challenges to Caps on Noneconomic Damages

Legal Challenges to Noneconomic Legal Challenges to Noneconomic Damages CapDamages Cap

Michigan - MCLA § 600.1483 – limits Michigan - MCLA § 600.1483 – limits recovery of non-economic damages to recovery of non-economic damages to $280,000 (except in some cases where it $280,000 (except in some cases where it is $500,000).is $500,000).

Zdrojewski v. Murphy 254 Mich App 50 Zdrojewski v. Murphy 254 Mich App 50 (2002)(2002)– Appeals court held the cap as constitutionalAppeals court held the cap as constitutional

Neal v. Oakwood Hospital Corporation, Neal v. Oakwood Hospital Corporation, 575 NW2d 68, 77(Mich. App. 1997) 575 NW2d 68, 77(Mich. App. 1997)

Page 18: Medical Malpractice and Legal Challenges to Caps on Noneconomic Damages

Legal Challenges to Noneconomic Legal Challenges to Noneconomic Damages CapDamages Cap

WisconsinWisconsin– Yvette M. MaurinYvette M. Maurin,, et al. v. Gordon Hall, M.D. et al. v. Gordon Hall, M.D. – Recently upheld cap on noneconomic damages in a Recently upheld cap on noneconomic damages in a

unanimous decisionunanimous decision– Awarded $3M in damagesAwarded $3M in damages– Reduced to $100,000 via capReduced to $100,000 via cap– Case filed before new cap went into effect – new cap Case filed before new cap went into effect – new cap

is $500k for child, $350k for adultis $500k for child, $350k for adult– Justice David Prosser – “the caps reflect the Justice David Prosser – “the caps reflect the

Legislature's intent to curtail huge malpractice Legislature's intent to curtail huge malpractice damage awards and keep insurance costs down”damage awards and keep insurance costs down”

Page 19: Medical Malpractice and Legal Challenges to Caps on Noneconomic Damages

Legal Challenges to Noneconomic Legal Challenges to Noneconomic Damages CapDamages Cap

Nebraska Supreme Court – Nebraska Supreme Court – Gourley v. Nebraska Methodist Health System Gourley v. Nebraska Methodist Health System 663 N.W.2d 43 (Neb. 2003). 663 N.W.2d 43 (Neb. 2003). – Section 44-2825(1) – capped at $1.25MSection 44-2825(1) – capped at $1.25M– The court held that the cap passed the special The court held that the cap passed the special

legislation charge because it was legitimate public legislation charge because it was legitimate public policy policy

– The court held that the cap passed the equal The court held that the cap passed the equal protection charge because it passed the rational basis protection charge because it passed the rational basis testtest

– Ruled it was constitutional (5-2) thus overturning the Ruled it was constitutional (5-2) thus overturning the trial courts earlier decisiontrial courts earlier decision

Page 20: Medical Malpractice and Legal Challenges to Caps on Noneconomic Damages

Legal Challenges to Noneconomic Legal Challenges to Noneconomic Damages CapDamages Cap

West Virginia had a $1M cap on damages (now West Virginia had a $1M cap on damages (now has a $250,000 cap - $500k in some cases)has a $250,000 cap - $500k in some cases)Has withstood two challenges to its Has withstood two challenges to its constitutionalityconstitutionalityHowever, support may be erodingHowever, support may be erodingFirst time – West Virginia Supreme Court voted First time – West Virginia Supreme Court voted unanimously (1991)unanimously (1991)Second time – 3-2 (Dec. 2000)Second time – 3-2 (Dec. 2000)One of the judges who supported it is no longer One of the judges who supported it is no longer on the courton the courtHas Joint Liability and Collateral Source reformHas Joint Liability and Collateral Source reform

Source: AMNews, Feb. 5th, 2001 - http://www.ama-assn.org/amednews/2001/02/05/prl20205.htm

Page 21: Medical Malpractice and Legal Challenges to Caps on Noneconomic Damages

Legal Challenges to Non-economic Legal Challenges to Non-economic Damages CapDamages Cap

Does federal government have the power Does federal government have the power to mandate a nationwide cap?to mandate a nationwide cap?

United States v. LopezUnited States v. Lopez

United States v. MorrisonUnited States v. Morrison

Substantive law of torts is an area of Substantive law of torts is an area of traditional state sovereignty traditional state sovereignty

Even if Congress could, should they?Even if Congress could, should they?

Page 22: Medical Malpractice and Legal Challenges to Caps on Noneconomic Damages

ConclusionConclusion

Caps on non-economic damages could help to Caps on non-economic damages could help to slow the increases in malpractice premiumsslow the increases in malpractice premiums

This will make it easier for physicians to continue This will make it easier for physicians to continue to practice and see patientsto practice and see patients

The approach does have some serious The approach does have some serious drawbacksdrawbacks

Alternatives are available but are generally Alternatives are available but are generally unprovenunproven

““We don’t have four or five years for We don’t have four or five years for demonstration studies” – Donald Palmisanodemonstration studies” – Donald Palmisano