Pain and suffering.


“Pain and suffering” should be what we call the circumstance that Americans endure watching the shenanigans of Congress. But, it is a major issue in tort reform and the cost of medical care. The House of Representatives just passed a tort reform bill that places a $250,000 cap on non-economic damages, often referred to as “pain and suffering.”

In medical malpractice cases there are two types of compensation for plaintiffs who are successful in their law suit. First are economic damages. Economic damages are monies awarded as compensation for monetary losses and expenses, which the plaintiff has incurred, or is reasonably likely to incur in the future, as a result of the defendant’s negligence. Ergo, out-of-pocket expenses for hospitals, medications, loss of earnings or earning capacity – no statute or court case contains a complete list of all possible economic damages. These may come to many millions of dollars for a child that requires lifelong care for an injury due to medical negligence.

Non-economic Damages include:

  • Pain
  • Suffering
  • Inconvenience
  • Mental suffering
  • Emotional distress
  • Loss of society and companionship
  • Loss of consortium
  • Injury to reputation

Surprisingly many Republicans voiced opposition to the bill. They said it was a “states rights issue” and not the purview of the federal government. This is not what I would call a “conservative issue.” If it were, then California would unambiguously NOT ENDORSE IT. But California already endorses it and enshrines it in state law.

The chart below are California’s limits on pain and suffering damages.

Statute of Limitations

  • 2 years in most cases
  • 1-3 years for medical malpractice

Damages Limits

  • $250,000 in medical malpractice cases
  • No pain and suffering in Worker’s Comp Claims
  • Prohibited by law in some cases

Why is this important in the context of health care reform and medical insurance? First is medical malpractice insurance premiums. Some argue that a cap on non-economic damages does not influence medical malpractice insurance premiums. Bull feathers! In Texas, since the state enacted a $250,000 cap on non-economic damages in 2003, claims and lawsuits in most counties have fallen by half, malpractice premiums have decreased on average by 27.6%, and physicians are moving into the state instead of moving out, according to the Texas Medical Association. Nothing is cheaper in California, but medical malpractice insurance fell dramatically after the cap (Footnote).

If a New York or Florida surgeon or obstetrician must first earn more than $190,000 to pay his/her malpractice insurance premium before he/she can put a penny in his/her pocket… well, you get the point. The best states for insurance rates are California, Colorado, Kansas, and Texas. All four of these states have enacted a reasonable cap ($250k–$300k) on non-economic damages. This not only influences their charges for services, but limits the practice, as well. Many obstetrician/gynecologists only practice gynecology in high malpractice rate states, thus limiting access to obstetrical care.

But forget that doctors must first pay their malpractice insurance rate before earning any money. The real cost of non-economic damages is what is known as “defensive medicine.” Doctors order numerous needless tests as a “defense” against being successfully sued. “Defensive medicine” is estimated to cost $46 billion annually in the United States.

This new limit will go a long way to further lowering patient premiums after the Republicans hopefully repeal and replace Obamacare as promised.

Roy Filly

Footnote:

Internal Medicine: Yearly Medical Malpractice Premium 2013-2014

Florida (Miami and Dade counties): $47,707

Illinois (Cook, Madison and St. Clair counties): $40,865

New York (Long Island): $37,877

California: $4,168

General Surgery: Yearly Medical Malpractice Premium 2013-2014

Florida (Miami and Dade counties): $190,926

New York (Long Island): $141,608

Texas: $23,252

California: $16,982

Ob-Gyn: Yearly Medical Malpractice Premium 2013-2014

New York (Long Island): $195,891

New York (Bronx): $192,412

Texas: $27,434

California: $16,240

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About Roy Filly

Please read my first blog in which I describe myself and my goals.
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4 Responses to Pain and suffering.

  1. David L. Wood M.D. says:

    Low caps on non-economic damages sure influence intent of medical malpractice suits.

  2. Steve Kemp says:

    Agreed Roy. We need to atrack healthcare at the root. As much as I hate regulations, the states and feds need to regulate the reasons why health care is so expensive and let the rest of it take care of itself.

    For 30 years I’ve wondered why our govt doesn’t hire social services anti-abuse workers. They would more than pay for themselves by getting undeserving people off the gravy train. The program should be complimented with back to work programs.

  3. Starchild says:

    I think caps on “pain and suffering” damages are a good idea – the difference between the cost of medical malpractice insurance in California, which has such caps, and other jurisdictions which do not is striking, and these costs contribute greatly to the high costs of health care – but I also think the House critics are correct that the federal government has no legal authority to impose such caps.

    Model (state-level) legislation in this area would also mandate that juries be told what portion of damages awarded would be going to attorneys’ fees.

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