Moving Beyond the Quick Fix: Medical Malpractice Non-Economic Damage Caps A Poor Solution to the Growing Healthcare Crisis

There is no doubt that the U.S. is facing a healthcare crisis. The U.S. has the most expensive healthcare system in the world, spending billions more than any industrialized nation. Despite the astronomical cost of our healthcare system, Americans continue to go without access to affordable and quality healthcare and affordable prescription medication. For example, nearly forty-two million Americans were uninsured in 2013. One in four working-age Americans did not have insurance at some point in 2013. Over sixty percent of all bankruptcies are a result of unpaid medical bills. The U.S. ranks highest in medical cost per capita, but ranks twenty-sixth in the world for average life expectancy. Over the past decade, there has been a growing movement among the medical community and state legislatures to address the healthcare crisis through the capping of non-economic damages for medical malpractice lawsuits. The focus of these caps is to limit damages that relate to pain and suffering, emotional distress, loss of companionship and punitive damages, but does not limit damages based on any economic losses. Proponents of caps point to the success of caps implemented in several states as proof that the caps are a viable solution. However, their data is grossly inflated and misleading. Moreover, caps are likely to breed more malpractice, are unconstitutional and are likely to punish those who suffer the most-women, children and the elderly.This paper proceeds in five Parts. Part I provides the background and evolution of medical malpractice lawsuits in general. Part II introduces the beginning stages of medical malpractice tort reform and some of the theoretical arguments put forth by its proponents and opponents. Part III of this paper analyzes the argument put forth by proponents of non-economic damage caps as the most viable solution for the growing healthcare crisis. Subpart 1 and 2 of this section analyzes the accuracy of medical and financial data put forth and argues that caps are likely to cause more medical error to the same class that it is meant to protect. Subpart 3 discusses the disproportionately disparate effect non-economic damage caps would have on low-income individuals, women, children and the elderly. Subpart 4 analyzes the troublesome constitutional issues that non-economic damage caps in medical malpractice suits pose.Next, Part IV of this paper discusses the viability of other solutions to the healthcare crisis and the potential to remedy the crisis without compromising societal fairness or our constitutional freedoms. Subpart 1 of this section addresses the possibility of limiting the amount of frivolous claims through a “certification of merit requirement.” Subpart 2 advocates for patient safety and the prevention of medical negligence before it arises. Subpart 3 offers an alternative to the way in which insurance companies calculate their medical malpractice premium rates. Finally, this paper concludes, stating that non-economic damage caps is an undesirable approach to both the healthcare and medical malpractice insurance crisis because of their inequitable and constitutional implications and the availability of other viable alternatives.