Medical Malpractice Caps Are a Pain in the Anatomy June 11, 2011.

Medical malpractice caps are unfair to victims. It is just that simple.

There is a lot of controversy over medical malpractice lawsuit caps, with most of it focusing on the raw deal an innocent victim gets if they have been harmed at the hands of a medical professional, or by a medical product. This is an issue that has taken on a life of its own, and shows no signs of slowing down. And, really, why would it when every day someone suffers the consequences of medical malpractice?

This issue is vitally important to everyone in this nation, as at some point in time, we may need medical care. Will we come out of the process in one piece? Will be have a successful outcome with the doctor? Or, will we wind up debilitated, with our whole life turned upside down, because of an error? More often than not, this is becoming a question patients contemplate before they take a trip to the hospital for any type of medical procedure.

Just recently, President Obama suggested he wanted to look at reforms to medical malpractice and other options to tweak health care, rather than repealing the health care reform bill. The premise behind that is a quest to find other ways to bring down health care costs. So far, so good. Unfortunately, he then commented he would put med mal reforms up front and center to "rein in frivolous lawsuits." You may recall the House suggesting legislation that would put into place a $250,000 cap for pain and suffering caused by health care goods/services or any medical product.

This med mal cap suggestion put the fire of outrage under patient advocate groups, and rightly so. The term frivolous lawsuit in the same sentence as medical malpractice is unconscionable. Most med mal patients are seriously harmed, and have no way to live their lives without financial compensation. They are victims of catastrophic medical malpractice, and someone has to be held responsible for the mistake that turned them into a shadow of their former self; for ruining their lives, compromising their health and possibly killing them.

There are at least 35 states with some form of med mal caps on damage awards. The House is making noises about a law similar to Texas and California, but they are trying to stretch it another step further, and limit damage awards for injuries caused by drugs and medical devices. Think about that for a minute. How far reaching would something like that be? Would it mean medical device makers could get off paying limited damages for a defective product? Would it mean the drug makes would get off paying limited damages for a dangerous drug?

On one side of the debate are doctors, who think caps will keep malpractice insurance rates affordable and keep doctors in their practices. On the other side of the debate are those asking about the victim, who suffered significant harm or death due to a medical error. Why should they pay for the doctor to keep on making mistakes? Why should they accept a damage cap of $250,000, if the actual award may be closer to $3 million? Med mal lawsuits can be very ugly and graphic, but why shouldn’t they be if a medical professional messed up? No lawyer takes an infected hangnail case to court.

When it comes to medical malpractice, there is really no such thing as a frivolous lawsuit. If you want a prime example of one, just think about the woman who was texting as she walked, and fell into a fountain. She wanted to sue the mall where it happened for not putting up railings around the fountain. Whatever happened to looking where you were walking? Since she was supposedly a mall employee, it would hardly be a surprise the fountain was where it was when she fell into it. No, medical malpractice lawsuits get to court because they have real merit.

There are further arguments that med mal caps are unconstitutional. That aside, the real concern here is the victim. Who is speaking for them? Will you speak up for yourself if you have been in a situation where you had to take a capped damage award and cannot pay your medical bills? You need to speak out and speak up. This is not just about your life; it is about the lives of others that may also be affected by medical malpractice.