Her explanation applies to counter the arguments of tort reformers everywhere. While it will likely be a long and difficult battle to educate the Colorado legislature on the benefits of allowing a jury to fairly and accurately adjudicate medical malpractice cases on their merits without artificial limits on liability, the fact that the issue is even on the agenda is a positive steps for consumers and patients nationwide.
Here is an excerpt from her excellent piece:
MYTH #1: It is easy to file a medical malpractice suit. In fact, it is very difficult (and expensive) to file a medical malpractice lawsuit. Most attorneys will not take on a medical malpractice case unless the damages are high and the liability is clear. Even in clear-liability cases, it can be difficult to provide the required evidence to prove your claim. Additionally, your expert witnesses will, by nature, likely be other doctors. It is hard to find credible, reputable witnesses who will testify that another doctor made a mistake. If you do find a good witness, testimony and report fees for doctors can be extremely high because their time is valuable.
MYTH #2: Statutory caps prevent astronomic awards. Wrong. Juries prevent astronomic awards. Just because the caps are increased does not mean that juries will hand out money hand over fist. What the statutory caps actually do is prevent a catastrophically injured patient from recovering adequate compensation for medical bills, time lost from work, pain and suffering, disfigurement, etc. These days, many malpractice cases are actually resolved in arbitration (where a panel of arbitrators hears testimony and decides the award), but under the current statutory caps, the arbitrators deciding the case have their hands tied if they believe the victim deserves a larger award.
MYTH #3: Statutory caps are high enough already. Current statutory caps are $300,000 for non-economic losses such as pain and suffering. The previous cap was $250,000, set in 1988. It took 15 years for that amount to be adjusted for inflation to the current cap. It has been six years since the last inflation adjustment; let’s not wait another 15 years. Additionally, the statutory cap on economic losses is currently $1,000,000 (though a judge has the discretion to award more). Anyone who has dealt with the medical system knows that medical bills can pile up quickly, even for a minor accident. Now imagine a health care provider’s carelessness causes debilitating paraplegia, requiring 24-hour care for the rest of the patient’s life. These medical costs will easily surpass the statutory cap within no time. Additionally, many assume that if they have health insurance that pays their medical bills, any settlement money goes into their pocket. However, insurance companies have right of subrogation and can recollect what they have paid out if a settlement is reached, profoundly minimizing the victim’s recovery.
MYTH #4: Malpractice suits are only filed by greedy people. Many people assume that all litigation is “frivolous litigation” and insist they themselves would never file a civil suit. And then a loved one loses a baby due to a doctor’s incompetence. Or a child becomes paralyzed, or even loses his life, due to a doctor’s mistake. Or an “angel of death” decides to play god. All of a sudden, someone has to pay. While I would never claim that there are no frivolous lawsuits, I do believe we need an unfettered civil system within which to try claims, for those cases in which real damages are clearly the fault of another party. There are significant checks and balances within the civil system to ensure that fraudulent, excessive claims do not prevail.