Monday, February 28, 2011

The Government Needs Your Money… to Rein in Frivolous Lawsuits?

During the President's State of the Union Address in January, his remarks were met with applause from at least one side of the aisle when he said, "I'm willing to look at other ideas to bring down costs, including one that Republicans suggested last year — medical malpractice reform to rein in frivolous lawsuits." These were not just empty words; the President has included $250 million in his budget for the Justice Department to "provide incentives for State medical malpractice reform,"(see Table S-8 in the Budget), i.e. to award grants to states who rewrite their medical malpractice laws to include caps on damages and other measures. This move follows on the heels of the President's bi-partisan debt reduction commission, which issued a call for placing a cap on noneconomic damages in malpractice cases (see Balancing the Budget on Broken Backs, November 30, 2010).

Long-considered a plank in the Republican platform, the President's push may be part of an overall strategy to appease Republicans and gain support for other Democratic and Presidential proposals and priorities. If doctors truly are practicing "defensive medicine" and ordering expensive and medically unnecessary tests out of fear of lawsuits, then reforming the system in some way should save money to the system overall, although just how much remains unclear, and whether it is worth investing $250 million in taxpayer money is even murkier.

More to the point regarding the President's statement in his address to the nation, what do damages caps have to do with so-called "frivolous" lawsuits? If a lawsuit is frivolous, meaning that it was brought without merit, it is likely to either be dismissed by the court or given short shrift by a jury of people who are none too happy about being called away from their lives to listen to a case that should never have been brought in the first place. Damages caps only come into play in serious cases, where the injuries were severe and catastrophic, and the jury has determined that the defendant should pay. In other words, caps on damages come into play in cases where the damage award is needed the most, and the plaintiffs are the most deserving of receiving every penny the jury has seen fit to award.

The President's budget is only one step in the overall budgeting process, which is ultimately decided by Congress, and both the House and the Senate will each present a budget of their own, with the final version likely containing elements of all three. But with a Republican-controlled House and less than a supermajority of Democrats in the Senate, it seems not unlikely that any Republican-friendly proposals - such as medical malpractice "tort reform" - from the President have a good chance of being adopted.

At Paulsen & Armitage, LLC, we will continue to monitor legislative attempts and changes in the law at the federal level and here in Colorado, just as we continue to provide the highest quality legal service to our clients who have been the unfortunate victims of medical malpractice or other injuries. If you or a loved one has been injured by the negligence or wrongful conduct of a doctor, hospital, or other health care professional, contact our office for assistance.