When doctors err: Will caps do extra harm?

 By Rose Clifford, Editor
© The Medical-Legal News 2007

 Medical malpractice and the tort reform surrounding it are hot topics these days, probably because the concept of med mal is so scary. The costs to doctors and insurance companies can be high when errors occur, but also can be high to patients, and often in ways more significant than money.

Despite possible monetary costs, I suspect most of us legal nurse consultants are slow to endorse restrictions being placed on the judicial system when it is deciding noneconomic damages. Medical malpractice cases are complicated, and arbitrary numbers will only frustrate the parties involved.

LNCs review medical cases for attorneys, insurance companies and healthcare providers. We look at the records to determine what really happened.

In the 20 years that I have reviewed medical records I have seen many cases, but I have almost never seen evidence of “frivolous” lawsuits. I have observed in some cases how selfish the parties can be, seeing only their little pieces of the pie without much thought to the ramifications of what each is doing to the system. This reinforces my notion that a jury must be the force to take a long hard look at each case.

We also must consider that in many caps states insurance rates have not fallen, and structured settlements are becoming more common, where not all the money is given to a victorious plaintiff. The insurance companies usually then keep the winnings, invest them and administer the longterm payouts.

There are those who are clamoring for medical courts, and given the complexity of med mal cases, this may not be a bad idea, but we still run the risk of taking the ultimate deciding force out of the equation — the jury. •

 Rose Clifford, RN, is a nurse consultant based in Kentucky; MedicalAnalysis@aol.com