Reforming Medical Malpractice Law: Interesting Discussion about Damage Limits in Malpractice Cases

Point of Law has an interesting debate over whether medical-malpractice noneconomic damage caps hurt consumers, between Ted Frank and Shirley Svorny. As Frank notes, “medical malpractice awards are” often “haphazard,” failing to distinguish between negligent and non-negligent physicians (jurors are, after all, not experts in medicine, and may be unable to understand scientific concepts that undergird some malpractice lawsuits). As Svorny notes, however, malpractice verdicts are not purely random, and thus provide some disincentive for negligence.

In a rational world, we would have specialized health courts to decide malpractice disputes, the way many other civilized countries do, since such tribunals are better able to see through unfounded malpractice claims and detect genuine negligence by doctors than are uninformed juries of laypeople. But state constitutional rights to jury trials often exist in state courts, and in federal courts, the Seventh Amendment right to jury trial applies, making it impossible to totally abolish such trials in malpractice cases despite their often erroneous results. (By contrast, in most states, legislators could toughen up limits on junk science in malpractice cases, although liberal activist judiciaries in a few states have thwarted legislative attempts to do so.) Perhaps legislators could impose stringent caps on malpractice cases tried in regular court, while giving specialized administrative tribunals more leeway to award damages. That way, people who have genuinely suffered lots of damages due to doctors’ negligence could do so before a tribunal of experts that has the expertise to distinguish between meritorious and meritless claims, while people with weak claims who wish to play litigation lottery would remain free to seek lesser amounts of damages in regular court before a jury of their (often uneducated) peers.

Malpractice reforms, like specialized health courts, have made no headway in Congress, even though they could save taxpayers and consumers a bundle.

Backers of Obamacare refused to include such reforms in the health care bill, and refused to cut medical costs through malpractice reform, with Senate Majority Leader Harry Reid saying that such reforms would save “only” $54 billion. The Pacific Research Institute estimates that just one type of cost that could be reduced through malpractice-lawsuit reform –defensive medicine — costs around $200 billion annually (which is almost as much as France spends annually on health care for all of its citizens; like most countries, France has no punitive damages, and fewer lawsuits against doctors).

One reform opposed by liberal lawmakers — setting up specialized health tribunals to hear malpractice cases — would be particularly helpful. Replacing uninformed juries with specialized health courts would provide more consistent rulings from case to case, eliminate meritless cases, reduce defensive medicine, and more speedily compensate injured people who truly are victimized by doctors’ carelessness. Such tribunals already exist in countries like “Sweden, Denmark, Finland, Iceland and New Zealand.”

Earlier, I filed an amicus brief challenging aspects of the health care law that violate the Commerce and Spending Clauses of the Constitution. It was filed on behalf of a majority of Minnesota’s State House of Representatives and the leaders of the North Carolina and Minnesota legislatures, in Florida v. HHS. Regardless of whether it is constitutional, Obamacare is harmful to the economy, medical innovation, and the healthcare system, and detrimental to patients, employers, consumers, and the insurance market.