Go to the mobile version of this Web site.

Login | Contact Us | Site Map | Paid archives | Electronic edition | Subscription Questions | Extras

Wrong way on damages

Medical malpractice bill creates costly third category

The Rocky

Published February 20, 2008 at 12:05 a.m.

Text size  

More Editorials

More stories »

A bill pending in the state Senate threatens to unravel Colorado's "stable" environment for medical liability law - and it could undermine Gov. Bill Ritter's plans to expand health care coverage for low-income Coloradans.

Senate Bill 164, by Senate President Peter Groff, D-Denver, would boost the award a patient can receive for pain and suffering (noneconomic damages) in medical malpractice lawsuits from $300,000 to nearly $450,000. That's a big leap, even if some adjustment to account for inflation may well be in order.

Far more disturbing is that the bill would add a new tier of damages in these cases that could blow the lid off of the reasonable limits the legislature had placed on most jury awards.

In addition to noneconomic damages and economic damages - awards to restore lost income and repay medical costs - plaintiffs could also demand compensation for physical impairment or disfigurement, such as surgical scars, caused by physician negligence or error.

Awards for impairment or disfigurement would be treated like economic damages, subject only to the $1 million limit jury awards for all damages. But even that $1 million limit can be illusory. A judge can "pierce" it if he finds that a patient's economic losses, plus any noneconomic damages awarded, exceed the cap.

There are certainly instances where that's appropriate, because patients shouldn't have to shoulder medical costs or forfeit income they would have earned when doctors make mistakes.

Physicians should be held accountable when they're at fault.

Colorado's current tort system handles that pretty efficiently, as we're one of only eight states recognized by the American Medical Association as having a stable medical liability system.

But caps for noneconomic damages - which can't be determined as objectively as medical costs or lost income - were imposed for good reason by the legislature in 1988: to prevent runaway jury awards, providing some assurance that doctors in Colorado will be able to afford liability coverage. Lawmakers were right to expressly classify awards for physical impairment or disfigurement as noneconomic when they amended malpractice laws in 2003.

At that time, insurance premiums had been surging, thanks in part to a Colorado Supreme Court decision stating that disfigurement and impairment should not be considered noneconomic losses.

Predictability may go out the window if plaintiffs can again seek separate awards for impairment or disfigurement. And the $1 million cap will become more porous than ever if the sky's the limit for an essential component of noneconomic damages.

The current malpractice system has encouraged specialists to practice in state-of-the-art facilities, mainly in urban areas. Affordable premiums have also made it possible for family-practice doctors to serve rural patients.

At a time when the governor, lawmakers and the medical community are working on ways to expand insurance coverage, SB 164 cuts in the opposite direction, threatening to raise medical costs to all. The bill should never reach Gov. Ritter's desk, and if it does, he would do well to veto it.

Comments

  • February 20, 2008

    4:38 a.m.

    Suggest removal

    mrfxx writes:

    It sounds reasonable to me that "plaintiffs could also demand compensation for physical impairment or disfigurement, such as surgical scars, caused by physician negligence or error."

    We are all horrified when we hear of physicians who have (for instance) removed the wrong limb or breast (in the case of breast cancer), or performed plastic surgery that didn't heal until there was intervention by another physician. All too often, follow-up stories show that this is not the first time the physician, hospital or clinic has put a patient at risk or made a similar if not the same error. Why shouldn't these physicians have to pay for negligence or error?

    It's a grayer area when someone comes into the emergency room and is prescribed medication that the patient is allergic to (often unknown to both patient & physician). I also believe that Colorado has a "good Samaritan law" in place which allows members of the medical community to assist to the best of their ability in case of an accident without repercussions - and that shouldn't be changed by this - if I am in an accident & there is someone on scene whose best efforts could save my life I want them to try, even if there are "unintended consequences".

    While I believe that most physicians are good, honorable & talented members of their professions, they - like other "self policing" groups - seem to lack the integrity to get rid of the bums in their profession - putting others at risk. If this self regulating group would oust the bums from the profession instead of passing them on to other hospitals/clinics, the credibility of the remaining physicians would not be in doubt in court cases.

  • February 20, 2008

    11:05 a.m.

    Suggest removal

    rickg19611 writes:

    Ambulance chasing lawyers donate part of their loot to Democrat politicians who then pass bills to make it easier for ambulance chasing lawyers to get a bigger loot on their next robbery/lawsuit.

    Meanwhile, citizens pay the price for higher medical bills to cover the cost of this corruption.

  • February 20, 2008

    3:19 p.m.

    Suggest removal

    freethinker07 writes:

    Nobody is disputing whether these damages are real and worth large sums. People are disputing whether the insurance industry can afford to pay. Wrong discussion.

    I have a better idea. Regulate hospitals better. One study reported $2.9 billion a year in the cost of hospital errors, not including hospital infections. It appears that hospital infections are the larger problem.

    One study indicated that a hospital infection adds $36,000 to the cost of a hospital stay and that 5-10% of all acute patients are infected. No information was given for non-acute patients.

    Center for Disease Control estimated the cost at $5 billion a year in 2000 and everyone agrees that the number and severity of infections are going up.

    In one case I was aware of recently, the 80 year old patient in otherwise good physical health entered the hospital for for a hip replacement. Her hip broke right after the surgery. (I don't know if this would count as hospital error. It sure looked like it to me.) The hospital infection more than doubled what had been the projected cost and killed her. If she had lived, the bills for rehabilitation would have been enormous. She would have lost for a long time, her cherished ability to live by herself. The family elected, for emotional reasons, not to sue.

    The nature of error reporting is that errors are underreported.

    The only incentive to hospitals to spend large amounts of money to keep errors and infections down, (aside from professionalism) is the threat of huge lawsuits.