The rationale for the proposed medical malpractice restrictions according to the sponsors of the bill is that jury trials in medical malpractice cases are "a costly and ineffective mechanism for resolving claims of health care liability and compensating injured patients." Additionally, the authors of the Bill contend that the threat of a lawsuit "is a deterrent to the sharing of information among healthcare professionals which impedes efforts to improve patient safety and the quality of care." Among the stated goals of H.R. 5 is to "reduce the incidence of defensive medicine and lower the cost of health care liability insurance."
It is impossible to argue that a one-size-fits-all pain and suffering award of $250,000 is a just way to make a victim of medical malpractice whole after he suffers tragic debilitating injuries. Under the circumstances, Representative Gingrey (a retired obstetrician who has been sued for malpractice three times) has taken a page out of Orwell's 1984, and H.R. 5 is drafted as if came straight from the Ministry of Truth. The bill is said to be designed "to ensure that persons with meritorious health care injury claims receive fair and adequate compensation." In actuality, H.R. 5 takes away a medical malpractice victim's ability to have a jury of his peers decide what a fair measure of compensation is. Representative Gingrey contends that H.R. 5 will benefit victims of medical malpractice "by reducing uncertainty in the amount of compensation provided to injured individuals." The only time that the $250,000 cap on damages will result in certainty, however, is when it limits a jury award that would have otherwise been higher. Somewhat ironically, the New York Times recently reported that the $250,000 cap is half of what Representative Gingrey settled his last medical malpractice litigation for, after he was accused of providing negligent care to a pregnant woman.
Tort reform advocates have been attempting to shift the burden of medical mistakes from the health care industry to victims of negligence for years. The argument is cloaked in self-righteousness: Victims' rights have to be curbed, and after this occurs, physicians will no longer be afraid to disclose errors. This will cause a change in the culture of medicine and allow medical errors to be analyzed and approached in a new more comprehensive way. Unfortunately, medical literature published by doctors (not lawyers) and the recent history of the patient safety movement provide plenty of reasons to be skeptical of this trickle-down approach to safety.
- undertake a national effort to create leadership, research, tools and protocols in the to enhance the knowledge base about safety;
- identify and learn from errors through immediate and strong mandatory reporting efforts, and voluntary reporting efforts, with the aim of making sure the system is made safer for patients;
- raise the standards and expectations for improvements in safety through the actions of oversight organizations, group purchasers, and professional groups; and
- create safety systems inside health care organizations through the implementation of safe practices at the delivery level. Id. at 6.
Advocates of tort reform hypothesize that the one of the reasons that medical malpractice is such a pervasive problem is that the health care industry is unable to examine errors in a systematic way because doctors are afraid to admit when they make mistakes for fear of being named as a defendant in a lawsuit. The theory is that if the financial consequences of medical mistakes are reduced, doctors will be more honest about admitting them, and this will lead to more data about errors, which will be analyzed and evaluated. Then, a "systems approach" will result in a safer health care sector.
Doctors have always been ethically required to disclose medical errors, partially because it is a means to ensure good care. That has not happened though. Moreover, since To Err Is Human was published twelve years ago, saving 1.2 million lives was not enough incentive to cause error reporting systems to develop and preventable errors to be analyzed. Under the circumstances, it absurd to suggest that (a) error reporting will increase and (b) a safer health care system will evolve once the impact of limiting malpractice victims' right of redress trickles down through the health care system.