Medical Malpractice and Tort “Reform”

I’m riding my white horse today.

As a lawyer, I know that people get harmed through no fault of their own by other’s people’s negligence and failure to pay attention to what is important. Whether it’s a car accident, a doctor who ignores symptoms, or a vicious dog who attacks a child, the person who is hurt should not have to pay the price for the injury. The court system cannot give back the things these people have lost: time away from work which leads to the loss of their careers, the pretty face that existed before the dog mauled the four year old girl, the mother who was killed by a drunk driver, living without constant pain caused by the injuries in the accident, the cheerful contributions to her family that the coma patient used to make before the doctor ignored the pulmonary thrombosis that led to her vegetative state.

When lawyers screw up a case, clients want to sue them and recover their losses. And they should. They should also be able to sue doctors, negligent drivers, and other people whose failure to pay attention has hurt them.

Unfortunately, “tort reform” usually means “medical malpractice lawsuit reform.” People think that lawyers are mean to doctors, who are just doing their best to heal people who probably can’t be healed in the first place.

That is not the case.

Look at the statistics in a recent Huffington Post article. Only 2-3% of ALL medical malpractice results in a lawsuit. That’s not 2-3% of medical care cases; that’s 2-3% of actual malpractice situations. Is such a number of lawsuits really excessive?

Caps on punitive damages is the issue Obama is expected to embrace, though. Punitive damages don’t reimburse someone for money they are out. Compensatory damages cover that. Punitive damages are intended as punishment – hence, the name “punitive.”

Why would someone require punishment for a screw-up? Think about how we decide how and whether to punish our children for negligence. Let’s say that Susie and Jenny are at a birthday party for one of their classmates and it’s cake and ice cream time. Susie gets excited explaining something and throws her arms wide, knocking over Jenny’s glass of punch, spilling it on her and ruining her party dress. Of course, Susie has to apologize to Jenny, and she has to get Jenny another glass of punch. She has to help clean up the mess, and if Jenny’s party dress is expensive Susie’s mom might offer to pay for it to be cleaned. These actions are compensatory in nature. They compensate Jenny for the loss of her glass of punch, her clean and dry dress, and her hurt feelings.

If Susie knocks the punch over because she was dancing on the table, though, Susie will be punished. Punitive action will be taken to ensure she doesn’t dance on the table and spill someone’s punch again.

Maybe we put Susie in time-out. Maybe Susie gets a spanking. Maybe Susie is grounded from her Barbies, or she is not allowed to go to any parties for the next month.

The point is not that Susie is being punished for doing something intentionally. She did not. She did spill the punch while being grossly negligent, though. She should have known that if she danced on the table where Jenny’s punch sat, the punch would spill.

Punitive damages in these cases are intended to stop gross negligence. They are not appropriate where there is no gross negligence – where the punch spills accidentally due to something unforeseen or where the negligence was minor. Punitive damages are for those egregious cases where the doctor ignored clear warning signs of his patient’s impending doom and did nothing.

Punitive damages are not awarded lightly by any jury. If a jury awards an amount in the millions, it is because the defendant in those medical malpractice actions has the resources to pay such an amount, even if it hurts. Punishment is not intended to kill, and punitive damages that bankrupt a company or a doctor aren’t appropriate. Punitive damages are supposed to hurt, though – just like being grounded from birthday parties hurts. And just like Susie, the idea is that punitive damages will hurt for a little while, but the defendant will get over it – hopefully to go forth more carefully in the future.