As congressional Republicans pursue their counter factual campaign this week to strip patients of their rights to pursue legal redress for harms they suffer while seeking medical services, the Florida Supreme Court has sent a powerful message to federal lawmakers about the wrongheadedness of some of their key notions.
The justices in Tallahassee have repudiated state lawmakers’ assertions of the existence of a “malpractice crisis,” in which dire action is needed to ensure doctors can get affordable liability insurance and be sufficiently protected to practice good medicine.
They also have rejected caps on patients’ claims for pain and suffering, finding that these limits on “non-economic” damages violate constitutional rights to equal protection under the law, and “arbitrarily reduce damage awards for plaintiffs who suffer the most drastic injuries.”
Sound familiar? The House has advanced but not voted yet on a medical malpractice proposal, HR 1215. It’s supposed to come to the House floor this week. But its proponents, including Tom Price, an orthopedist and the Health and Human Services secretary, have argued without sound evidence that the bill is needed because there are too many claims against doctors, who, as a result, are practicing costly defensive medicine, partly to ensure that insurers will continue to offer them affordable coverage.
Such claims have been widely debunked by independent, nonpartisan, and authoritative experts. They underscore that malpractice claims are low, focused on a few doctors with multiple claims, and that liability coverage is available and affordable so MDs need not engage in defensive practices. Those don’t contribute nearly as much as advocates claim to the skyrocketing costs of medical services.
Those interested in a deeper dive into the topic with excellent information—with detailed citations of sources—may wish to check out the newly updated “Briefing Book: Medical Malpractice by the Numbers” from the Center for Justice and Democracy at New York University.
The Florida high court decision also makes excellent points, as the justices sorted through the horrors experienced by a patient who hoped to get her wrist pain fixed but ended up with debilitating neurologic damage, instead. The court found that the woman, who was put under for her carpal tunnel surgery, had her esophagus pierced when intubated. She experienced excruciating pain when she regained consciousness, and her anesthesiologist, unaware of her harm, checked her heart and gave her drugs for her chest pain. She was sent home, where she fell unconscious but was discovered by a neighbor, who rushed her back to the hospital for care.
Weeks later, after multiple surgeries and a medically induced coma, the patient regained consciousness. She sued because she said her treatment had traumatized her and left her with constant pain and debilitation. Jurors heard her case and assessed her damages at $4 million—a sum she would need to take care of herself for a lifetime but was reduced under Florida law by about three-quarters due to damage caps.
The court tore into these limits, asking whether state lawmakers were justified in imposing them, particularly by claiming the existence of a “crisis” in the availability and affordability of malpractice insurance for doctors. The justices saw none, and asked whether it made sense to link doctors’ insurance woes with patients’ rights to protection under the law. They found it unacceptable, too, that the patients most grievously injured, compensated the most by jurors, suffered most due to damage caps that slashed into what they might receive.
In my practice, I see the big harms that patients suffer while seeking medical services, and I know that the process of seeking legal redress is unfamiliar and difficult for them. But they and their families confront the reality that will need economic and other support, sometimes for a lifetime, and sometimes the best and only way to get this is through the civil justice system.
To be fair, as the dissenting Florida justices noted, lawmakers and not courts may be in a more optimal place to study and determine broad public policy issues, including good ways to make the health care system operate soundly. But this means legislators must operate rationally, factually, and with the public good in mind—not based on partisanship and bad evidence.