Damage Caps Based on Deliberate Deceit Driven by Profit Over Patient Safety
Guest blog post by Parrish Collins, Attorney with Collins & Collins, P.C., Albuquerque, NM.
Damage caps create disincentives for improvement in medical care and patient safety.
The myths of medical malpractice are not based in reality. Instead, they are based in and motivated by profits. The medical industry like every other industry is governed by the profit motive. Unfortunately, in the case of medical care unlike other industries, innocent patients and families are harmed, often harmed very seriously and far too often killed.
One need only look at the realities of medical malpractice and its toll on patients, families, taxpayers and the medical care system overall to see that the constant drumbeat for tort reform is at best illogical, at worst it is based on outright deliberate deceit driven by profit over patient safety.
Caps on "Awards" Serve Only to Shift Responsibility
It is estimated by the Journal of Patient Safety that there as as many as 440,000 patient deaths each year by preventable medical error. The Office of the Inspector General estimated in a 2010 report that Medicare patients alone suffer 15,000 deaths per month (180,000/year). It may reasonably be expected that exponentially higher numbers are seriously harmed every year.
Despite these numbers, there are continuing calls to maintain and/or lower the caps on compensation to injured patients. They do not stop at caps.
They push for further protections such as recent US House Bill that erodes medical care standards. Fortunately, it has not yet passed and hopefully will not. The bill reads in relevant part states:
"… The development, recognition, or implementation of any guideline or other standard under any Federal health care provision shall not be construed to establish the standard of care or duty of care owed by a health care provider to a patient in any medical malpractice or medical product liability action or claim."
It is pretty remarkable that "guidelines and standards under any Federal health care provision" would not be established duties of a medical care provider to the patients.
The caps and other protections that shield medical providers and their insurance carriers from their own negligence effectively and intentionally shift the burdens of medical malpractice to patients and families. Caps simply put allow medical providers and their insurers to escape full responsibility for medical negligence.
Caps Are Detrimental Patient Care
Most states have caps (limits) on the amount of compensation that a judge and jury can provide to an injured patient or the surviving family and loved ones. These eliminate in many cases the possibility of any meaningful or fair compensation.
Caps create disincentives for improvement in medical care and patient safety. The trends are clear. As continued protections for medical providers at the expense of patients have increased over the years, so too have the deaths of patients from preventable medical error:
- 1999 Report from the Institute of Medicine: Remarkable at the time, the Institute of Medicine (IOM) estimated up to 98,000 annual deaths by preventable medical error.
- 2010 Report from the Office of Inspector General for Health and Human Services: The OIG estimates eclipsed that of the IOM. The OIG estimated 180,000 deaths each year (15,000/month) from Medicare related medical care alone.
- 2013 Report from Journal of Patient Safety: The OIG report certainly pointed to a much more serious problem across the medical care system than the IOM had estimated and this was confirmed by the Journal of Public Safety's estimated 210,000 to 440,000 annul deaths.
The 1999 report was met with shock by those who learned of the 98,000 deaths per year. Those estimates' now seem quaint. In light of the current numbers, most would welcome a return to the 1999 estimates.
Increasing Deaths Met with Calls for More Protections of Medical Providers
Most folks would look at these trends and say perhaps loudly that something needs to be done to protect patients. Insurance companies and medical industry are not among those folks.
Instead, they push for increased protections of medical providers including more caps on "awards" for patients and families. Most folks, again not including the medical industry or its insurers, would find this response not just odd but shocking. Yet that is the reality of the situation.
As more and more patients die each year, the push for more protections for medical providers and insurers is unrelenting. The myths are so pervasive and constant that most Americans, including juries, have bought into the mythical crisis of frivolous medical malpractice claims and the threat they present to doctors, medical providers and the medical care system overall.
What is most tragic, and that is perhaps not a strong enough word, is the fact that most patients accept these myths as fact. This includes the hundreds of thousands of patients that may be expected to die next year due to preventable medical error.
Parrish Collins is an attorney with Collins & Collins, P.C., Albuquerque, NM. He handles focuses primarily on cases involving serious personal injuries and wrongful death. He also handles criminal and DWI defense matters. He can be reached at (505) 242-5958.
Parrish represents personal injury and wrongful death clients and their families throughout New Mexico. His criminal and DWI defense practice is limited primarily to Albuquerque and the surrounding counties. Parrish‘s New Mexico personal injury and accident cases run the spectrum from automobile accidents, truck accidents, medical malpractice, slip & fall accidents, premises liability, nursing home neglect & abuse and wrongful death. Parrish feels fortunate to to represent clients with their personal injury and criminal/DWI matters.