Medical Malpractice

Let's talk for a second about medical malpractice reform. The republicans are right that this needs to be addressed in ANY health care reform, but I rather think that my version of malpractice reform will be somewhat more generous than the corporate-minded republicans would be.

Part of the problem with medical malpractice... indeed, with ANY litigation in America today is that Americans tend to view a settlement or judgment the same way that we view winning the lottery – an easy way to big bucks. And who decides on the judgment amount? Americans. So they award their fellow American a ridiculous amount of money in the hopes that someone will do the same for them someday.

So let's start by nailing down the definitions of damages a little more closely. “Damages” in general describes the money paid out to remunerate the injured party for their injuries. These fall into two categories: actual damages and punitive damages.

Actual damages refer to compensation to cover actual monetary losses. If you have to miss work because of the malpractice, or are deprived of your ability to earn future income.

Punitive damages are moneys paid to... as the name suggests... PUNISH the person that you're suing. Personally, I think that doctors shouldn't be liable for punitive damages except in cases of GROSS negligence. If the doctor just screwed up... it's sad, but you know what? It happens. Now, if the doctor was high or drunk, ill, suffering insomnia or something else that should really prevent him from practicing and THAT is what caused the malpractice, well, that's different. Hurt the hell out of that sucker.

Some states place “caps” on medical malpractice, amounts that the awards can't exceed. I think that this is what the republicans would like to see on a federal level. I CAN agree with that, but only if the caps are not set dollar amounts, but sliding amounts based on a scale.

For instance... and this is going to sound cold... if a child dies due to malpractice, the child should be worth less in monetary award than a spouse. The reason? The typical parent has no expectation of the child EVER being a wage earner in their household. So actual damages should be extremely low, although money for counseling for the parents should be included as actual damage. To those who find that unfair, let me ask you a question... is there ANY amount of money that will replace your child? If you get a new car, or a boat, will that make the loss of your child any easier? I know that in my case, it would not. Some parents can't survive the loss of a child no matter HOW much money they get, and some parents like John Walsh and his wife recover from the loss of a child with NO money and come back to do amazing things.

Now, it's different if you have a child who is rendered incapable of taking care of themselves. Say brain damage. I think that in those cases, a child's award should EXCEED that of an adult. It should be calculated depending on the age of the child, life expectancy, the years that the person will need care (and all of those years should be paid) as well as future earnings. Not entirely sure how you would calculate future earnings for a child in grade school or high school, but I'm sure that there MUST be.

Now do you get an idea why this isn't addressed in the health care bill? No matter how vital I think that it is, or YOU think that it is, it is a deep, complex issue with no easy solution. And when you DO apply an easy solution (such as the states that cap malpractice judgments at a set dollar amount) you wind up not treating each person as an individual, giving some people far more than they should be awarded and others far less.

Peace.

Rev. Randal