Medical Malpractice Reform

Robin Bara

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President Obama declared in early March that Medical Malpractice Reform is being considered as part of the overall proposition to reform the healthcare industry. As part of the reform, President Obama proposes that punitive damages and pain and suffering awards be capped. Such damages are often referred to as non-economic recovery, and the debate on capping such awards has been an ongoing topic of debate on Capitol Hill.

In article by the American Bar Association reports that, in addition to setting caps on non-economic damages, the Obama administration is considering establishing "special health courts" and Alternative Dispute Resolution as a means to better facilitate settlement negotiations and allow for the malpractice party to offer its condolences to the aggrieved party.

The issue with creating legislation that caps non-economic recovery is that it defeats the purpose of awarding non-economic damages. By definition, putative damages are an equitable remedy awarded where compensatory damages are deemed an inadequate remedy. The purpose of these awards is to prevent the plaintiffs from being under-compensated. Reducing the amount of economic recovery hinders the victims' rights to just compensation.

In viewing the reform into an economic context, reducing the amount on non-economic recovery forces the victims to accept less than they may actually deserve and provides little incentive for physicians to provide a high quality of care to patients.

While it is clear that the healthcare industry is in need of reform, capping non-economic damages is treating a symptom to a much larger problem and does little to nothing to resolve the problem itself.