In my opinion, there should be caps on unlimited noneconomic damage awards (usually called "pain and suffering" awards) in medical malpractice cases. They have a negative impact on three critical aspects of healthcare in the United States: cost, access, and quality. In the debate about tort reform and medical malpractice damage caps, cost of healthcare services, access to those services and their quality should be considered collectively because policy issues affecting one factor often have unintentional and sometimes inescapable effects on the other two.

First, it is important to understand what damage caps do not do. In most states, damage caps do not limit the amount of money an injured patient may recover for present medical bills, future medical bills, or supportive care. This is particularly important for a catastrophically injured patient like a brain-damaged baby. Further, damage caps do not limit the amount of money an injured patient may recover for lost wages or future wage loss. What damage caps do limit, but by no means eliminate, is recovery for noneconomic damages like pain and suffering. In California, a state with damage caps, a malpractice plaintiff may still recover up to $250,000 for pain and suffering in addition to the recoverable damages for medical costs and lost wages (if pending legislation passes, the cap will be raised to $750,000). In states without damage caps, damages for pain and suffering often dramatically and unpredictably inflate personal injury awards by millions of dollars. Sound public policy may dictate that healthcare organizations and physicians pay patients for injuries caused by medical error; however, sound public policy should not dictate that we make lottery winners of their lawyers.

Regarding costs: Spiraling damage awards have pushed malpractice insurance premiums for some medical specialties to levels previously unimaginable. However, in states with caps, malpractice premiums are sometimes two-thirds lower than in states without caps. The cost of unlimited pain and suffering awards is passed on to every physician, every hospital, and every consumer of healthcare. Someone has to pay for those $30 million, $50 million, and even $100 million verdicts; unfortunately, we all do.

We know that physicians are now practicing defensive medicine due to the threat of malpractice litigation. However, it seems that defensive medicine has merely resulted in more, not better, care. Unlimited malpractice damage awards can even thwart prospects of early settlements of malpractice cases, for the plaintiff may hold out longer in hopes of a larger award.

Regarding access: Hospitals and physicians are facing economic difficulties and cannot afford to support the costs associated with unlimited malpractice awards. Since 1987, sweeping reductions in Medicare and commercial reimbursement rates have left many physicians and hospitals in dire financial straits. Escalating costs of providing healthcare, in the face of diminished reimbursement rates, are literally driving some doctors and hospitals out of business. In areas of the country without damage caps (sometimes called "tort reform") there are shortages of physicians in several high-risk specialties because of unlimited malpractice exposure. All across the country hospitals have difficulty finding on-call physicians for their emergency departments. Often, physicians cite malpractice exposure as a reason they do not take ED calls.

Regarding quality: Proponents of unlimited damage awards state that fear of malpractice suits is an effective force in improving the quality of care. However, research has not borne this out (Edbril & Lagasse, 1999;Localio et al., 1991). The argument that fear of a large award is a deterrent to unsafe care is exceedingly weak.

Neither side of this debate argues for a lower standard of care. Healthcare performance improvement groups and related agencies are working on many different fronts to improve quality and reduce the risk of error and injuries. Proponents of tort reform (pain and suffering damage caps) are merely arguing for a rational set of rules by which predictable and proportionate damages may be allocated. In my opinion, caps on noneconomic damages in medical malpractice litigation more equitably balance the competing interests of patients and the physicians, nurses, and healthcare organizations which treat them.

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