Roshomon Ethics: Capping Jury Damages for Malpractice

Critics of the Democratic health care reform proposals routinely raise capping  jury awards for medical negligence and malpractice as a missing ingredient that would lower health care costs by making doctors’ malpractice liability insurance premiums less costly. It’s a legitimate issue worth debating, but cap advocates typically cite jury awards of outrageous damages in cases where the doctor’s conduct was defensible, while ignoring cases like this one.

A urologist removed the wrong kidney—the healthy one– from a patient, and later took a biopsy from the same patient’s pancreas when he was supposed to be testing the remaining kidney. The United States is the only country in the world where the victim of this sort of of life-destroying medical incompetence can receive anything approaching appropriate compensation, thanks to punitive damages and the lack of caps (in many states).

Good policy-making requires a fair consideration of both sides of any issue. Advocates of a cap on jury damages need to acknowledge that they are willing to sacrifice the welfare of deserving victims, as well as limiting the sanctions on doctors who should not be practicing medicine. Opponents of caps need to make the case that compensating these victims of malpractice is worth the cost to the system and the nation, as well as the burden on competent physicians and the undeserved windfalls some litigious patients and their families receive.

Both sides of the argument can correctly claim that their way is fair, and that the other side is unfair. The problem is how one can possibly look at such an issue “objectively.” Whether jury caps for malpractice is more or less just than the current system is a Roshomon ethics question: the answer depends on one’s perspective, background and priorities.

[Ethics Alarms thanks Gabe Goldberg for the New York Times link.]

2 thoughts on “Roshomon Ethics: Capping Jury Damages for Malpractice

  1. The bigger problem is that the system is broken. Physicians are allowed to police themselves. Reports of malpractice are supposed to be investigated by other physicians and any incompetence or carelessness dealt with by monitoring, suspending, or revoking their license. The problem is, this doesn’t happen. Hairdressers have more stringent monitoring and professional enforcement than physicians in this regard (at least in my state).

    We need to end the practice of the fox guarding the henhouse and have physician malpractice investigation and sanction levying done by a state agency not run by physicians.

    The physician in question has almost certainly done this kind of thing before. It was noticed by other physicians who did not report it to the licensing board (as required) and conspired to keep it quiet. I hear about horrible, life-threatening malpractice on at least a weekly basis from our local hospital. I have complained about it to the licensing board, but nothing is ever done.

  2. Absolutely. Self-policing doesn’t work—not in medicine, not in law, not in business. It should—the lack of a willingness to throw out bad apples hurts everyone involved. But we teach our children that “snitching” is bad, and the lesson never leaves, even though it’s a cultural trap.

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