Oct 5, 2009 | 3 min read

Medical Malpractice Reform: The True Numbers?

A recent article in TIME magazine about malpractice reform, available at: http://www.time.com/time/magazine/article/0,9171,1924501,00.html, caught my eye for several reasons. First, the article compares the varying levels of malpractice insurance costs for doctors throughout the nation. However, the article also contains incorrect facts about awards for noneconomic damages – money awarded for pain and suffering. Of note, the article, a Spotlight into Malpractice Reform, references that an obstetrician in Florida could pay five times as much as a colleague in Texas pays in malpractice insurance premiums. The reason behind this discrepancy? The author of the article blames it on the fact that "awards [for pain and suffering] are unlimited[]" in Florida, unlike Texas, where such damages are capped.

What the author of the article fails to realize is that this is wrong – awards in Florida for pain and suffering are capped. Beginning in 1988, the Florida legislature enacted NICA – the Neurological Injury Compensation Act, which was enacted as a way to compensate children who fit certain criteria. However, what the Act essentially did was limit the amount a child could recover from a doctor for a birth related neurological injury (most Ob/Gyn cases fall into this category), even if the doctor committed medical malpractice in the treatment of the child. Under NICA, a child gets $100,000 for a lifetime of pain and suffering. If the child dies, the death benefit is limited to $10,000, but if there is clear and convincing evidence of bad faith or malicious disregard of human rights, safety, or property, then a parent would not be prevented from suing the doctor. This is an almost impossible standard!

Florida has also placed a cap on medical malpractice awards in general, limiting noneconomic damages such as pain and suffering to $500,000 against medical practitioners such as doctors and nurses. For medical negligence that results in a permanent vegetative state or death, Florida has capped awards at $1,000,000. There are also separate caps related to hospitals and nonpractitioners. With respect to the medical negligence of nonpractitioners, Florida has capped noneconomic damages at $750,000 per patient, and where such negligence results in a permanent vegetative state or death, the maximum is set at $1,500,000. There are also separate caps in place for emergency services and care. For such services, recovery against medical practitioners are capped at $150,000 per patient, up to $300,000 recoverable by all patients from all such practitioners. Awards against nonpractitioner defendants providing emergency services is capped at $750,000 per claimant, up to $1,500,000 recoverable by all patients from all such practitioners. Florida statutes state these figures as the maximum amount a patient can receive, even if there are multiple negligent practitioners or nonpractitioners. For public health care providers, like the local county hospitals, there is also a more restrictive cap of $100,000 for all damages.

What needs to be the focus of health care in the United States is the reduction of costs. Part of the argument for capping malpractice awards has been the reduction of malpractice insurance premiums for doctors. Damages caps have been in place in Florida for quite some time, and malpractice insurance premiums have not been significantly reduced. Perhaps more attention should be focused on what else can be done to reduce costs, as the capping of malpractice awards is still not reducing health care costs in Florida and around the country. The real culprit is that there are bad doctors that commit multiple acts of malpractice but continue to practice. If the Department of Health and the doctors would police their own, rates would go down.