Monday, September 19, 2005

A Schedule of Damages for Malpractice Cases?


One of the stranger reform proposals I occasionally hear emerge from the medical circles is the notion of a "schedule of damages" for medical malpractice cases. This ostensibly would give greater certainty and predictability to jury verdicts in malpractice cases - rather than picking a number based upon the evidence and testimony presented at trial, jurors would be asked to match the plaintiff's injuries to a schedule and award damages accordingly. Or perhaps they would simply be asked to itemize the plaintiff's injuries, and the judge would apply the schedule.

It won't fly.

Why not? Leaving practical issues aside, because it would undo the biggest accomplishment of the medical malpractice insurance companies in their quest for "tort reform" - damages caps. Think about it. Take the worst malpractice injury you can think of - let's say, quadriplegia, or leaving somebody in a persistent vegetative state, or killing somebody, or leaving somebody conscious but completely unable to communicate or interact with the outside world. Under "tort reform" measures in most states, that's worth at most $250,000.00 in non-economic damages. So what's paraplegia worth? $200,000.00? What's a single paralyzed limb, or an amputated limb worth? The loss of vision in both eyes? In one eye? $50,000.00? What if you have a combination of injuries - do you sum the damages, award only the value of the injury deemed most serious under the schedule, or... what? Can you imagine a legislature trying to foist such a schedule on the public?

As caps on non-economic damages have had no apparent effect on insurance rates, perhaps we shouldn't be surprised that doctors are looking for alternatives. And perhaps it would even be true that a schedule of damages would work better for doctors and for victims of malpractice than the present caps. But the insurance companies are not going to give up the fact that if their insured kills or cripples you, your non-economic damages are capped at a level that would be absurdly low if placed on even a modestly fair schedule of damages.

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