PRESIDENT BUSH called for the reform of medical malpractice law during his State of the Union address. And with doctors here and there around the country striking and protesting rising malpractice insurance premiums, Congress is considering legislation to cap noneconomic damages in all malpractice suits nationwide. But the bill, which has been kicking around Congress for some time, is more a creature of the tort reform wars than a creative response to the problem of deterring and compensating for medical errors. It should be improved.
America sees tens of thousands of serious medical errors every year. It also sees a large volume of malpractice litigation -- litigation that drives up doctors' insurance premiums and produces some irrational judgments. But these sets overlap only modestly: Most victims of medical errors don't sue, and the windfall judgments against doctors do not necessarily involve the most egregious negligence. So the system is failing on all counts. It doesn't reliably compensate for error, and it punishes malpractice haphazardly at best.
The pending bill is modeled after a California law that advocates say has slowed the growth of insurance premiums in that state relative to others since the 1970s. By capping pain and suffering and punitive damages at $250,000, it would prevent windfall judgments. That, advocates claim, would relieve pressure on premiums and make health care more accessible -- and such damage caps are a worthy idea. But the bill would do nothing to address the medical errors half of the equation. While it gives doctors protection against unfair suits, it demands nothing of them in exchange. And by preempting all state malpractice laws, it would discourage more creative state-level policymaking. Congress's goal should not be uniformity among the states -- particularly not uniformity on such imperfect terms. Rather, the goal should be to encourage states to imagine more constructive mechanisms to compensate victims, protect doctors from frivolous suits and encourage physicians and hospitals to reduce error.
To do this, Congress should avoid writing the rule itself and instead condition federal health care money to the states on their adoption of reforms conforming to broad federal guidance. The goal should be to protect victims of doctor error as well as victims of unfair lawsuits. Some states might combine liability caps with, for example, greater disclosure of doctors' and hospitals' malpractice records. Others might consider more radical steps. The current bill would not encourage such innovation but would straitjacket the states with a simplistic rule.