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Caps on Non-economic Damages and the Tort Reform Controversy

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Tort reform has been a contentious legal, medical, and ethical debate in this country for decades. Specifically, attempts to reduce medical malpractice lawsuits by capping non-economic damages (typically defined as pain and suffering, loss of consortium, and other intangible losses), were thought to be the best way to curb rising healthcare costs and stem the tide of runaway jury verdicts in cases with sympathetic plaintiffs. Now that some results of tort reform are coming to light, the underlying assumptions that led to the caps on non-economic damages are being questioned. Your Denver medical malpractice attorney discusses the tort reform controversy and some recent conclusions about the efficacy of the reform’s strategy.

Colorado began capping non-economic damages as early as the 1980s. Currently, many states have limits on non-economic damages. Proponents of capping argue that limiting the monetary amount available for intangible losses–that are by their very nature difficult to quantify–avoids excessive burdens on the healthcare system. High monetary verdicts are not the only burden; if caps discourage malpractice lawsuits, then doctors do not need to practice “defensive medicine” and order unnecessary tests and procedures in efforts to cover every base for purposes of a potential malpractice claim. Additionally, proponents advocate that doctors would be more willing to perform risky procedures and accept patients with very complex illnesses if they know that their malpractice liability is limited.

Alternatively, opponents of capping contend that limiting redress for non-economic damages is unconstitutional since it denies a plaintiff the right to have the court system decide civil disputes and appropriate remedies. They argue that caps are arbitrary because they are uniformly applied and not based on the facts and circumstances of individual cases. Finally, opponents of capping non-economic damages propose more effective methods for reigning in healthcare costs, such as tighter regulation of doctors, hospitals, and other healthcare providers.

A study released in October 2011 by the non-profit advocacy group Public Citizen studied the effect of tort reform in Texas from its passage of caps on non-economic damages in 2003. The study found that although malpractice lawsuits had decreased, Medicare spending and private insurance premiums had increased faster than the national average. In addition, the percentage of Texans who lack insurance had increased.

Your Denver medical malpractice attorney points out the caps on non-economic damages did not lessen the burden on the healthcare system as a whole, as was the intention of the tort reform. Furthermore, the study concluded that tort reform fails to address the most important part of healthcare: patient safety. Tort reform has not fostered quality improvement in healthcare; the whole idea of relieving doctors from practicing “defensive medicine” or encouraging them to perform risky procedures and accept sicker patients did not prove to be the case.

If you believe you would like to pursue a medical malpractice lawsuits and/or tort reform, contact your Denver medical malpractice attorney at Levine Law today.