December 5, 2011 – Huffington Post writer Shirley Svorny recently wrote a piece in regarding the efforts to have “Joint and Several Liability” repealed. Under the joint and several rule, an injured victim can recover the full-amount of damages from any one of the wrong-doers. Here are a few excerpts from her blog, Med Mal Caps Hurt Patients:
The U.S. Senate is set to consider on the Republicans’ Jobs Through Growth Act, which contains a section aimed at reforming medical malpractice by imposing caps on economic and non-economic damages similar to those in place in Texas. Texas limits non-economic and exemplary (punitive) damages in all cases, and limits what relatives can get in cases of wrongful death. An obvious disturbing consequence is that caps reduce compensation to severely-injured individuals. Caps would hurt consumers in a second way — lower damage awards would reduce medical professional liability insurers’ financial incentives to reduce practice risk.
Much of the protection consumers have against irresponsible and negligent behavior on the part of health care providers hinges on oversight and incentives created by the medical professional liability insurance industry. A nationwide shift to caps could result in more cases of negligence and substandard care. Support for caps comes from individuals who see the medical malpractice system as broken, largely based on anecdotal observations. Everyone seems to have heard a story of a high verdict to a plaintiff whose claim was not valid. Yet, careful studies suggest these cases are anomalies, and the court system generally works.
Critics of the legal system point out that many cases of negligence are not reported or adjudicated. However, every review has found claims are concentrated among a very small subset of physicians; less than five percent of physicians are responsible for the overwhelming share of claims. Even if a large percentage of negligent actions are not reported, it would seem that the present system works in identifying physicians whose practice patterns put patients at risk.
Under the current system, liability motivates efforts to reduce risk. Reducing liability, as caps do, is rarely a good idea in any situation. Placing caps would reduce malpractice insurers’ incentives to oversee physician practice patterns and reduce incentives to manage risk in our health care system, and make health care that much riskier for all of us.
The HBO documentary “Hot Coffee,” further explores the issue of tort reform and its effects. Read our previous blog about the Hot Coffee documentary here. The Philadelphia personal injury attorneys at Messa & Associates support victims of catastrophic injuries including medical malpractice, fire, explosion, burn and birth injuries. We believe personal injury victims should have the ability to present their cases in court and have a jury determine a reasonable and fair amount to help injured parties recover their damages. For more information on tort reform, please contact us at 1-877-MessaLaw.