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Four States Consider Malpractice Limits

October 5, 2004
Voters in four states will decide next month whether to limit their right to recover awards for pain and suffering in medical malpractice cases. Doctors and insurance companies are pushing hard for adoption of the measures in Florida, Nevada, Oregon and Wyoming.

Doctors say caps on awards are needed to hold down liability insurance rates, while trial lawyers and most consumer organizations say there should be tighter controls on insurance companies and better regulation of incompetent or careless physicians.

Liability limits have already been implemented in 27 states. In some of them, injured consumers have found that they're unable to find a lawyer to represent them in malpractice cases.

In Brownsville, Texas, Jose Cantu has been seeking an attorney since his wife died after routine surgery to open a blocked artery in her leg.

Last year, Texas voters approved Proposition 12, which limited to $250,000 the amount defendants of medical malpractice lawsuits would have to pay for non-economic damages. Since then, doctors report they've enjoyed lower malpractice insurance premiums but consumers find no improved access to health care and fewer options if they suffer a medical injury, said Dan Lambe, executive director of Texas Watch, an Austin-based nonprofit group.

After Cantu left his wife's side for a few hours the night of her surgery, a nurse ignored his daughter’s plea for help when she noticed her mother’s heart rate slowing, Cantu said. Other health workers ignored her circulation problems and bed sores and treated her poorly, he said.

Attorneys have told Cantu that with the $250,000 limit, they can't afford to try the case, the Brownsville Herald reported. Malpractice cases are among the most expensive to try. Expert witnesses alone can cost more than $150,000.

“It’s very hard to tell (clients), ‘Look, you have a great case, but it’s not economically viable.’” McAllen attorney Aizar Karam told the Herald.

Texas Lt. Gov. David Dewhurst called Proposition 12 a great success and said it "has really turned out to be profitable.” Dewhurst pointed to a 17 percent reduction in medical malpractice rates for doctors who have insurance with the Texas Medical Liability Insurance Association.

Lambe said Dewhurst was ignoring the 147 percent increases in rates by TMLT since 1999.

The American Medical Association has been pushing hard for federal legislation to limit malpractice awards. President Bush supports a House-passed bill that would place a nationwide $250,000 cap on noneconomic damage awards.

A report from the General Accounting Office (GAO) last year found that lawsuits accusing doctors of medical malpractice do not appear to significantly limit access to health care.

In Florida, lawyers have placed measures on the ballot that would make medical records more accessible and bar doctors from practicing if they have three malpractice judgments against them.

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