There was an interesting write up in The Sierra Vista Herald a couple of weeks back about how medical malpractice reform could lead to the practice of defensive medicine. The writer is a doctor and a hospital trustee, so it stands to reason that the commentary skewed a bit in favor of medical personnel. At the heart of the opinion, however, is the idea that tort reform is necessary to keep costs down for doctors, and that lower costs will lead to an increase of services and service providers with better facilities.

This argument is a common one, but that does not make it a logical one. Lowering damage caps as a means to control “frivolous” lawsuits does not automatically create more money for additional services in an area; instead, it eases the pressure on doctors and surgeons to perform their responsibilities to the best of their ability at all times. It does not treat the problem of medical malpractice; it merely hides the consequences.

What tort reform doesn’t take into account

The idea of a “frivolous” lawsuit is illogical to medical malpractice attorneys for a number of reasons. First and foremost, we put our own money into the cases we take, because injury cases are always performed on contingency: thus, we receive no payment unless we win our cases. It would be foolish to take on a case that isn’t a true example of medical malpractice. This is not to say that we don’t handle complex cases – we do. And we do so because the rights of the people we protect need to be represented when another person has caused them an injury.

Secondly, medical malpractice reform puts often disparate groups of people all together in one group. Those who were injured because of a defective medical device, or became sick after using a mediation for an off-label use, are not the same as a woman whose doctor fails to diagnose her multiple sclerosis or performs an amputation on the wrong body part. Suing a manufacturer for lying about the safety of a product (such as with the Stryker hip replacements) is not the same as calculating the worth of your arm or leg. If you’re unsure whether this is true, ask yourself how much your right arm is worth to you.

Finally, a damage cap indicates the worth of a human life. If a 35 year old scientist with two young children dies on the operating table because his nurses fail to monitor his vital signs correctly, it is unjust to say that his life should be limited to an arbitrary and capricious artificial cap. His children will grow up without a father; his wife has lost not only her partner but half of her household income (or more, if he was the primary breadwinner). His parents have lost their child, his siblings their brother. The death of one man can affect countless numbers of lives for the worse, yet we’re relegated to an arbitrary number for his worth.

We respect the doctor’s right to his position, but we cannot agree with it. By limiting damage caps, we take away some of the pressure on medical personnel to be aware of and responsible for their actions. No one denies that sometimes, accidents happen. But in our eyes, damage caps are a way to further punish the victims as opposed to those who committed the acts of negligence.

Plaxen & Adler, P.A. is dedicated to protecting the rights of medical malpractice victims throughout Maryland. For more information about medical malpractice, please visit our website.