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In his recent op-ed discussing the malpractice caps in his state of West Virginia, trial attorney Paul Farrell Jr. likens the caps to protections for drunk drivers.

“Protecting bad doctors is akin to protecting drunk drivers,” he says. “Reducing the punishment for driving drunk only encourages repeat offenders. It is how we punish wrongdoers that keeps them from hurting us again.”

He’s quite right. In a very real way, malpractice caps do not protect good doctors from lawsuits or wrongly deserved punishment. Rather, by lowering the possible fines a bad doctor will have to pay for even the most egregious act of negligence, it allows bad doctors to avoid punishments that will significantly affect them.

Do you believe a bad doctor, who makes millions of dollars over a lifetime, is really going to be affected by paying a fine? Especially when the insurance company pays the fine and the only real penalty is a small premium hike? –Paul Farrell Jr.

At the same time, while people might have been led to believe that malpractice caps help protect the public from paying for so-called “frivolous” lawsuits, they often have the reverse, undesired effect of increasing the burden on the public health care system, and thus, the taxpayer. The recent documentary Hot Coffee brought to light a case in Nebrasksa where a boy born with severe, life-altering birth defects as the result of medical negligence will require a lifetime of 24-hour care as a result. While a jury awarded the family enough money to pay the boy’s medical bills for the rest of his life, the medical malpractice cap in the state of Nebraska severely limited the award the family will actually receive. Now, rather than an insurance company that makes billions in profits every year paying for his care, state taxpayers will end up paying for it when the boy is forced onto Medicaid. Just this one malpractice case will cost Nebraska taxpayers millions of dollars. But there are thousands.

So who benefits from malpractice caps? Bad doctors and insurance companies. When bad doctors benefit, do they become better doctors? No. When insurance companies benefit, do they pass the savings on to you? No.


  1. Gravatar for Jim O'Hare RPLU AIC IAS
    Jim O'Hare RPLU AIC IAS

    Are caps really akin to protecting drunk drivers.

    The cap is an upper limit to protect a goofy number awarded by a jury, for the only subjective cause of action. There is no measuring stick to assess what pain is worth. What is $100k worth of pain? Make it up on other causses. Argue for higher limits and higher caps.

    That poor young man in Nebraska could have had a special needs trust along with an annuity to take care of his needs. Was it really birth defects related to medical negligence? Are they not different? You state that the award was enough but limited. - Did the cap work?

    Give me the list of those companies making billions in profits, I need to send them an applicatiion!!

    How would a professional liability insurance company pass on benefits to the general public ?


    jim OHare RPLU AIC AIS

    dir claims

    Medicus ins


  2. Gravatar for Camryn Hansen

    Thanks for reading and commenting. Regarding the Nebraska case, yes, a jury ruled that the boy's birth defects were the direct result of medical negligence. He had an identical twin brother who was not harmed and who lives a normal life today. The jury awarded the family $5.65 million to cover his medical expenses, but because of a Nebraska state-mandated cap on damages he could only collect $1.25 million, which will not cover the lifetime of 24-hour care he will need. The amount awarded by the jury was not "goofy;" it was what the jury determined was fair and necessary in this case. The cap completely negated the jury's decision.

    As for how an insurance company would pass the savings onto the public, tort reformers often argue that if there were more caps, doctors wouldn't be charged so much for malpractice insurance and thus wouldn't have to charge so much for the services they provide. The case of Texas (as just one example) shows us that this isn't true. While Texas has caps of $250,000, it also has the highest health care costs in the nation, and the costs have actually increased since the caps were instated. On average, states with caps actually have higher malpractice premiums than states without caps.

    Thanks again for reading.

  3. Gravatar for Jim O'Hare RPLU AIC IAS
    Jim O'Hare RPLU AIC IAS

    Thanks Camryn - I enjoy a good debate.

    A birth defect is the way the infant was made in utero, Sometimes drug induced like Thalidimide.

    In that type of case both infants would be affected. That was my question. A real honest birth defect is nobodys fault. If it was a birth defect and not negligence the cap helped. I have seen dozens of twin cases over the years. Disparity in sizes, sycophant syndrome etc.

    Docs dont charge what they want to it is dictated by humana and the other companies. The DOc pays his own insurance, Blue crioss charges what they want. There is zero correlation between med mal premiums and health care costs. Just like your HO policy and auto policy, they both involve you and thats it.

    Regards Jim

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