The noisy debate in the General Assembly between trial lawyers and doctors about raising the limits on medical malpractice lawsuit awards is over — at least for this year. For those keeping score, the doctors won; at the urging of physicians, legislators defeated the trial lawyers’ bill to increase the limits on one category of medical malpractice awards.
But the bottom line is that nothing has changed, not even the rancorous tones of the battle.
This perennial sport is a waste of time, words and political energy. More importantly, it is a lost opportunity to accomplish something meaningful for the people whose interests ought to count the most: the patients. What patients need is:
1. Equitable and accessible compensation for their injuries and losses;
2. Reliable and just accountability for erring providers; and
3. The ability to prevent tomorrow’s injuries by learning from today’s.
The fault-based tort system we now have accomplishes none of these goals very well, and most of them very badly. Raising the lawsuit award caps for those who both bring a lawsuit and whose intangible losses exceed the present limits would affect very few people. Most important, raising the damage caps would do nothing to improve patient safety and access to compensation.
The evidence about patient safety is clear: Increasing doctors’ liability does not produce safer health care. In fact, it impedes in numerous ways health care’s own efforts to make itself better. A fault-based, punitive environment causes error to be denied rather than addressed; drives hospitals and physicians to argue only that they were right, rather than to examine openly how they might have done better; and inhibits information about “near misses” from being collected, analyzed, and turned into useful lessons.
Achieving the goals of patient safety requires a much more thoughtful and comprehensive approach than the debate about damage caps.
Common Good Colorado has been working for more than two years on medical liability reform ideas that would improve the equity of compensation for injured patients, the effectiveness of accountability for providers, and the safety of future health care consumers.
The first step in addressing these goals would be a demonstration project focused on the neonatal neurological impairment, a category that includes cerebral palsy.
Patients affected by cerebral palsy face daunting challenges — medical, financial and otherwise. The number of these families assisted by the existing medical liability litigation process is minute. Very few achieve substantial settlements. Much more money is spent just operating the system.
As a result, even those who do recover get less than 40 cents of every dollar spent on their case. The large majority cannot prove physician negligence and get nothing at all. An alternative process would make compensation both fairer and more efficient.
The same day that legislators defeated the medical malpractice caps bill at the Colorado Capitol, Common Good Colorado hosted a forum across town, at the University of Colorado’s Anschutz Medical Campus. The forum brought together health care providers, policy experts and attorneys to discuss the legal system’s failures in medical liability. The debate at the Capitol was stuck in the past. The discussion at the Anschutz Medical Campus was focused on the future.
In its 2010 session, the General Assembly will consider renewing the Colorado Medical Practice Act, the regulatory framework for physicians. It is an outstanding opportunity to explore the wider changes needed in the legal environment of medicine. Damage caps may well come up again, but hopefully only as one part of a package of comprehensive reforms and not as the din that drowns out the more important discussion about what really matters.
Edward A. Dauer is dean emeritus of the University of Denver’s Sturm College of Law. Judith I. Ham is president and CEO of United Cerebral Palsy of Colorado. They both sit on the board of Common Good Colorado, a nonprofit organization.
