House Votes To Cap Malpractice Damages

While the U.S. Supreme Court is set to hear arguments next week over the constitutionality of the nearly two-year-old health-care reform package, members of Congress have been busy trying to chip away at the legislation.

Earlier today, the House approved (by a 223-181 vote) the Protecting Access to Healthcare Act (it spells PATH!), which puts a $250,000 limit on non-economic damages for medical malpractice claims. It also gets rid of the 15-member Independent Payment Advisory Board (whose initials don’t spell out anything cool), which was supposed to start providing counsel to Congress on Medicare changes.

Those in favor of this legislation claim that the malpractice cap would help bring down health care costs. They also slammed IPAB as “unelected bureaucrats.”

But opponents of PATH say the problems with the bill are many. According to the folks at Public Citizen it would:

(1) Leave patients without compensation for the share of damages assigned to an uninsured, underinsured or bankrupt defendant;

(2) Allow negligent providers to compensate patients with multiple payments over time, which would short-change victims out of the compensation they need immediately to cover their health care costs, while providing a windfall to the negligent provider;

(3) Cap only patients’ attorney fees while leaving a “sky is the limit” blank check for health industry fees;

(4) Shorten the time frame in which a patient can file a claim; and

(5) Limit punitive damages for all health industry participants, including drug and medical device manufacturers, which eliminates a critical incentive against the most egregious types of misconduct.

But this might all be much ado about nothing, as this legislation is not likely to impress the Democrat majority in the Senate.

Bill stripping parts of health-care law passes House [Washington Post]


Edit Your Comment

  1. Sarek says:

    Let’s see what happens if an errant doctor amputates the wrong leg off a Congressman, or if his artificial knee or pacemaker breaks. Let’s then see if $250K is all he gets.

  2. eturowski says:

    Can someone close the italics tag, please? I feel like my desk is slanted.

  3. ingramje says:

    Bush passed this in Texas in the late 90’s saying it would bring down health insurance costs. Same song and dance when the electricty market was deregulated in Texas. Afterwards, both healthcare premiums and electricity costs have skyrocketed. Such BS!

  4. ancientone567 says:

    Maybe things have to be tweaked but my father and younger brother are doctors and malpractice insurance costs them a bloody fortune almost to the point that they don’t want to practice. Many that would have been doctors just are not deciding to be doctors because the money just is not there for the time they spent in school. So now we are left with not many good, old school doctors. We have to cap the fees if we want good doctors. This is what was told to me.

    • CoachTabe says:

      The documentary “Hot Coffee” has already proven that it’s a lie that malpractice and damage award caps lower insurance costs. So these caps would do nothing to stem the tide of doctors supposedly leaving the profession because of malpractice insurance costs.

    • Tiercelet says:

      That’s the perception in a lot of the medical community, but like many people, they’re only seeing their own yard.

      The real issue with malpractice is that a very small number of doctors — something like 5% or fewer — are responsible for the vast majority of malpractice claims (I recall the figure being in the 80% range, but even if it were 50% it’d be ridiculous).

      At the end of the day, there are a few bad doctors who drive up prices for everyone else. These are people who are a hazard to their patients and should not be practicing — and if they were de-licensed, everyone else’s malpractice premiums could drop.

      • ingramje says:

        I totally agree! My father died due to the negligence of a doctor that we later found had been involved in multiple malpractice lawsuits and continued to practice. He just packed up and moved to the next hospital. I will never forget during the final video deposition of our lawsuit, the doctor stating “I made a mistake, had I done something different, he would still be alive.”

      • iMaNcOoL says:

        Oh, so competent doctors never get sued? Tell that to a close friend of mine who is a pain management physician and got sued in a case where she did a procedure properly yet the patient supposedly lost function of her leg. The only problem was that a private investigator photographed the patient walking and getting in and out of a car unassisted and neurology stated that “the patient’s symptoms are not congruent with the supposed injury”. The case went to trial and the plaintiff lost after the jury deliberated for only 2 hours. The end, right? Nope- the verdict got overturned on appeal and is heading for a retrial- 8 years after the incident happened. And to add insult to injury, the plaintiff refuses to settle for less than 2.5 million- for an injury that may not even exist!

        Moral of the story- good doctors DO get sued frivolously. It’s easy to sit back in the armchair and claim that only incompetent doctors get sued. But the mantra that we get taught in medical school is that ALL doctors get sued at least once, which is not an exaggeration, especially in the northeast where there are no caps on malpractice. And FYI: getting sued is not fun. Depositions, meetings, trials- all take time away from patients, not to mention that you have to deal with some third-rate ambulance chaser who knows nothing about medicine trying to make you look incompetent.

        Yes, there are legitimate cases of medical malpractice out there. But it should serve as no surprise that at least up here in NY state, it’s exceedingly hard for a plaintiff to get a favorable jury verdict- the rate of acquittals is around 90%. So what happens is that lawyers sue a lot and just hope to settle, which brings in some money instead of going to trial. So please, take off your rose-colored glasses and realize that there is a lot more going on than meets the eye. No wonder that states with tort reform (i.e. Texas) are experiencing an influx of physicians whereas states like New York are losing them.

    • bitplayer says:

      All do respect to your family I haven’t met a doctor yet who drives a 15 year old car and works about 4 p,m. on Friday. So I really hate hearing them all cry broke, none actually seem to be broke. As evidence that this doesn’t work Texas has tort reform didn’t lower reimums one bit.

      • ancientone567 says:

        I will be the first to admit that they are both rich and spoiled and strong Republicans. I am not a republican nor living as well as they are but I have noticed that their standard of living has declined quite a bit. They still live like kings and queens but are having financial troubles most people can only dream about like can we buy that third house? It is hard to feel for these doctors because they have no idea just how spoiled they are. They live in a bubble and don’t understand poor except for the extreme. All they understand is that they can’t afford to fly from here to there every time they want lunch. lol. They live in a whole different world and they never will get it until you take the money away.

  5. suez says:

    Meanwhile, legislaters are also encouraging doctors to lie to you if you’re pregnant. This will end well!

  6. Loias supports harsher punishments against corporations says:

    Caps should not be put in place, or at least given a big cushion (like tens of millions) but the sniff test of malpractice needs to be reformed. There needs to be a way to limit malpractice suits to those that are deserving.

    But $250,000 might not come close to covering losses incurred from certain valid malpractice claims.

    • TuxthePenguin says:

      Early in my career I worked for a company that provided accounting to doctors. One of my clients had an open-and-shut case that was not malpractice – he had a signed AMA from the patient when they refused to have a test to determine what was wrong. Got sued anyway. Even back then, it was cheaper to settle than go to court.

      That needs to be stopped. Simply make it loser-pay for all legal bills. Case closed.

      • Loias supports harsher punishments against corporations says:

        Agreed – the high expense of litigation, malpractice, and just the court system in general is that we allow every frivilous lawsuit into the court system. We need a better way to tier the system, and better sniff tests for lawsuits.

    • FatLynn says:

      That’s the non-economic damages cap, i.e. the punitive, pain & suffering, etc. cap. Medical bills, lost wages, etc. are not subject to the cap, as I read it.

  7. absherlock says:

    The way to limit malpractice suits is to make public the malpractice records of doctors so that patients can make an informed decision. The medical community has shown themselves to be either unwilling or unable to keep bad doctors from practicing. Get the bad doctors out of medicine and you’ll stop a lot of the malpractice right there.

    • StarKillerX says:

      So your saying those filing frivilous malpractice suits will stop if this information is published? Really?

  8. PadThai says:

    WOW, that picture..

  9. deejmer says:

    Why is everyone whispering? This italics deal is messing with me.

  10. Republicrat says:

    If malpractice awards are killing the healthcare industry, does that mean we have a lot of really really incompetent doctors out there?

    Or does it mean there are problems with courts either giving damages where there is no wrongdoing or awarding damages in excess of what should reasonably be deserved?

    If the former is true, then IMO that’s a problem with the industry that needs to be solved. If the latter is true, then it is a problem with the judiciary that needs to be solved.

    The problem I see is that this will reduce the professional incentive (or perhaps deterrent) for doctors to practice competently. You might actually think twice about cutting a corner during a procedure if your livelihood is put into jeopardy.

    • OccasionallyOpinionated says:

      Just having to defend the lawsuits drives up expenses, regardless of whether or not damages are awarded. There needs to be some sort of threshold for bringing suit.

      Enter exaggerated story about Dr. and 20 other medical professionals who just happened to have their name somewhere on a chart, who were sued because a patient with terminal cancer died after 4.5 months instead of having ‘6 months left to live’…here

    • juggler314 says:

      The problem is that in our society people will sue for anything, all the time, regardless of whether it’s really warranted. There are some states (nevada is one) that barely even have any practicing OBGYN’s anymore because malpractice insurance is so expensive it’s just driving them out of the state.

      Here’s the thing – yes if a doctor can reasonably be shown to have made a mistake he shouldn’t have – by all means strip him of his license and bankrupt him. However – an honest mistake…I mean it’s just a job, albeit one with lots more training than normal…should not bankrupt people.

      The whole situation is ridiculous – there absolutely should be a limit on non-economic losses. Tort reform in the industry is long overdue.

      • MrEvil says:

        Texas has tort reform in medical malpractice. And you know what? It hasn’t done a damn thing for healthcare costs or given people better access to healthcare.

      • StarKillerX says:


        OB/GYNs have the highest lawsuit rate and as such their malpractice insurance rates are also second to none.

        A huge part of the problem is that the legal system has put these doctors into a no win situation in many instances. For example, if there are complications during labor and the OB/GYN feels an internal fetal monitor is needed they need the women’s consent to put it in. That in itself is understandable and fine, but if she refuses to allow the procedure and then the lack of the internal monitoring results in complications for either the mother or baby the women can then turn around and sue her OB, and win, because she was in labor and was not in her right mind.

        Just an FYI, that is not a theoretical case either these suits are fairly frequent and can often result in judgements in excess of a million dollars.

  11. ronbo97 says:

    The best congress-critters money can buy.

  12. ronbo97 says:

    The best congress-critters money can buy.

  13. ronbo97 says:

    The best congress-critters money can buy.

  14. Costner says:

    I might be ok with a cap, but not in the traditional sense. I think doctors, hospitals, drug companies etc should be liable for damages and often the only way to “punish” them is via a financial penalty, but I also believe there are a lot of frivolous suits that are nothing more than jackpot justice for people.

    Don’t get me wrong – if someone left a clamp inside of someone and had to open them back up three days later to remove it, they should be held liable… but the person should not collect $10M for three days of discomfort etc. We need to set common sense amounts for reasonable pain and suffering and/or loss of mobility / life / a limb etc.

    So for example if we say losing a limb is worth $1M, that is what the person should be entitled to. However for large drug companies or medical device providers if they are found negligent the fines should be much higher – although no single person should ever receive $50M or $100M in compensation because in the end all that does is result in higher costs shifted elsewhere. It isn’t like a drug company just absorbs that loss and says “we will do better next time”…. hell no – they just raise the price of their latest pill 15% to compensate.

    So if a company is fined $50M but the patient who had some minor discomfort is awarded $500k… then the remaining $49.5K should go into a fund used to pay for healthcare for those who cannot afford it, or to government health screening programs, or to low-income healthcare subsidies, or to whatever.

    All of that said, $250k is a joke. If you kill my brother or sister or daughter or father due to sheer incompetence or if you accidentally cut off my arm when I went in for a routine carpel tunnel surgery…. you can bet your ass I deserve a lot more than $250k. No amount of money can bring back a loved one or an arm, but it can help with adapting to live without them/it and can help with lost income from the death of a spouse / partner etc. $250k is a slap in the face for a lot of (legitimate) malpractice claims.

    • Clyde Barrow says:

      But you stated something that is difficult to prove; “due to sheer incompetence”. Not every death in the operating room is “due to sheer incompetence”. The human body is a complex machine and it is impossible to predict the outcome when someone goes into surgery. Your body’s reaction to the stress, drugs, etc., could be an issue that for me? I could live through it. Others? Who knows? Maybe they won’t. People die from simple operations every day and even while at the dentist. It’s does not mean that it is due to “due to sheer incompetence “.

  15. Woodside Park Bob says:

    This is just more special interest legislation from the GOP. Until I retired, I was Associate Director for Research and Disputes at the National Practitioner Data Bank, which receives reports of all malpractice payments for physicians. The law does not allow the reports to be made public. But data is made available for statistical analysis. That data shows that in most states over the last 20 years only about 2 percent of physicians were responsible for over half of all the money paid out for malpractice, and many of that 2 percent had multiple payments in their records.

    The real problem is that nobody is doing much to reduce malpractice itself; if the state licensing boards would do something about the 2 percent, we could make a major dent in malpractice, save lives, and reduce injuries (not to mention reduce costs).

    Purported solutions like the cap on malpractice compensation passed by House Republicans don’t really save any money. They just make the victims bear the very real costs of malpractice rather than the physicians who cause the problems.

    The best way to reduce malpractice costs would be for physicians and the public to demand that the few physicians who cause the bulk of the problem have their licenses restricted or revoked until they are retrained and can prove they can practice safely.

    • pinkyismycat says:

      Thanks you. Best post yet.

    • Clyde Barrow says:

      The real problem is that nobody is doing much to reduce malpractice itself; if the state licensing boards would do something about the 2 percent, we could make a major dent in malpractice, save lives, and reduce injuries (not to mention reduce costs).


      Great post and if that 2 percent is the root-cause of the over 80 percent of all the problems? Yes you’re right in that this needs to be addressed.

    • JiminyChristmas says:

      Wait, wait, wait. So, what you are saying is that the answer to high malpractice insurance costs is…less malpractice?

      That’s so crazy it might just work.

  16. daemonaquila says:

    You know what will bring down health care costs? Universal access and the right care at the right time.

    I’m a disability attorney in TX, where we already have horribly restrictive malpractice laws. Most of my clients aren’t disabled due to their underlying illness, or an injury – they’re disabled because the medical system neglected them nearly into the grave, or made them worse due to inadequate (patients with severe chronic illnesses being seen only by a nurse practitioner or PA for years) or incompetent care. I could tell you shocking horror stories about what happens to people in the ER – especially in a state where ERs are all but immune to suit. MORE people are being damaged, and there is no accountability. Health care costs rise because instead of caring for people properly when the illnesses and injuries are relatively minor, they only get proper care once they are in a health crisis that costs a great deal more to treat. For example, a year’s worth of diabetes care (minus drug costs, which vary greatly due to the multiple types and dosage) may be no more than $1200-$2000. A single hospital visit by that same diabetic, going into a crisis, may be upward of $50,000.

  17. Not Given says:

    Q. What do you call a guy who graduated at the bottom of his class in medical school?
    A. Doctor.

  18. Jevia says:

    Damage caps have never reduced the cost of healthcare or insurance. Its a scam by the corporations to keep their profits and force the costs onto taxpayers. When injured plaintiffs cannot recover all their future healthcare costs, they end up on Medicare/Medicaid and the cost is paid by taxpayers, you and me.

    The movie Hot Coffee does a great job of explaining this scam as well as other methods corporations are utilizing to prevent injured people from getting compensated by the corporation.

  19. waicool says:

    i deserve to live forever and damn it somebody is gonna pay to fix me. where’s my cigarettes!!!???

  20. John Gage says:

    In my opinion, its not the malpractice awards themselves that are factoring into health care costs. Its the FEAR of malpractice awards that is doing it. Doctors fear being sued so they order every possible test even in the most minor cases to prevent themselves from being sued down the road.

  21. u1itn0w2day says:

    Malpractice suits,rates,problems etc are a symptom of other things. This will not fix the cause of HIGH health care costs. Besides many of these medical “mistakes” or incompetence affecting people for LIFE you have the existing costs. With what people already pay for insurance or in the way bills patients want bang for the buck. You spend a week in the hospital for what was supposed to be a 50K stay/procedure and they muck it up. No fracking way. Guess what-you screw my life up, you waste my time and gouge me on the bill…it’s lawyer time.

  22. mobiuschic42 says:

    Looks like someone’s missing a ! It will be nice if that fixes it…

  23. JiminyChristmas says:

    Yet another stupid attempted intervention by Congress where they should just let plaintiffs, defendants and the courts work it out on a case-by-case basis.

    First of all, the $250K cap – they really think that’s adequate or fair for every case everywhere? Maybe in cases where people fully recover from their injuries. What if I’m left unable to walk, have a limb amputated (Wrong limb surgery anyone?)? What if I’m paralyzed from the neck down? If someone has to spend the rest of their life bedridden or in a wheelchair due to a medical mistake, $250K doesn’t even begin to compensate them for their loss of quality of life.

    The concept of economic vs. “non-economic” damages is problematic also. What if the injured party is a child or a full-time parent or is just unemployed? They don’t have a job with earnings that can be used to calculate a damage award, so how do you calculate their ‘lost income’? With a child, you don’t know if they would have become a burger flipper or a neurosurgeon.

  24. JiminyChristmas says:

    Beware the law of unintended consequences. In terms of government, there are two basic ways to address wrongdoing. One is letting aggrieved parties bring lawsuits in the judicial system. The other is to pass and enforce regulation that addresses the wrongdoing specifically.

    If people are going to be held accountable for their mistakes, you are going to need one or the other: lawsuits or regulations. Personally, I would argue that “do the right thing and you won’t get sued” is an easier way to do business than working under a strict regulatory regime.

    Then again, I think the intent of many in Congress is ‘none of the above.’ They want no regulation nor do they want people to be able to seek redress through the legal system.

  25. farker22 says:

    isnt this government controlling the free market?

  26. fairly vexed says:

    What was told to you was wrong. “Tort reform” is just another way of screwing poor people who’ve already gotten screwed over at least once already by careless doctors, workers, etc., etc.,

  27. Duke_Newcombe-Making children and adults as fat as pigs says:

    Chris…unless you’re trying to join in on the GOP language “framing” bandwagon, there is no such thing as a “Democrat” majority. The name of the party is the Democratic Party of the United States. Something is “a Democratic lawmaker/bill/version/majority/minority. Even “of Democrats would work.