Capping damages in any civil case, including medical malpractice cases, is anything but civil. In my opinion, capping damages in medical negligence cases victimizes the individuals most severely injured by medical malpractice for a second time.

Payment of noneconomic damages (meaning payment for damages other than lost pay, future wages, or medical bills) is significant because it is the only money available to compensate for the pain, suffering, physical impairment, or disfigurement that the victim may endure until his or her death. A victim truly gains nothing when compensated only for the loss of wages or medical bills, because that compensation is merely replacing money that they actually lose as a result of the injury.

Further, capping damages is fundamentally unfair in how it is applied to individuals. For example, a night club stripper and a stay-at-home mother of three young children can be killed in exactly the same way, yet the night club stripper case has more value because, unlike the stay-at-home mother of three, the stripper earned an income. It is rather ironic that the proponents of tort reform are also the same proponents of "family values," and yet under their version of "justice" the one individual most valued (mom) is monetarily worth the least. Likewise, "brain damaged babies," though valued by the family, have no economic worth.

Proponents of tort reform (capping pain and suffering damage awards) do trust jurors to make a determination of liability/standard of care issues in medical negligence cases, yet seemingly do not trust jurors to determine the amount of the award. This makes little sense when the average juror has at least some personal knowledge of physical and mental pain and suffering, but absolutely no knowledge of the difference or significance, for example, of a variable or late deceleration on an electronic fetal heart rate tracing.

There is an unfounded perception among the public that malpractice litigation and the accompanying large noneconomic awards are very common. However, in a comprehensive study of medical negligence, Harvard University researchers in 1990 found that only 1 of 8 negligently injured patients actually files a claim (Localio et al., 1991). According to the American Medical Association, between the years 1985 and 1990 the overall rate of medical malpractice claims declined at an average rate of 8.9% annually (Stewart, 1994). The U.S. Department of Justice Tort Policy Working Group found that of all medical malpractice claims, only 2.7% received noneconomic damages in excess of $1 million (Stewart, 1994). Runaway juries and huge jury verdicts are rare, but because they make the evening news reports, they are the only verdicts most individuals hear about. The odds of getting 12 jurors who are selected at random from a pool and who will render an outlandish verdict is extraordinarily remote. Any lawyer who handles medical negligence or personal injury cases will tell you that it is the medical error that matters most to the jurors; the more egregious the error, the higher the verdict settlement.

So, do large malpractice awards help improve the quality of care? If fear of public accountability is not a motivating factor to improve care, what is? Thus far, it would seem that mere concern for the welfare of others has not been sufficient motivation to improve quality care, especially in light of the recent study from the Institute of Medicine finding that medical negligence is the fourth leading cause of death in the United States (Kohn, Corrigan, & Donaldson, 1999).

Quality improvement and decreasing incidents of medical negligence are medical issues, not legal/justice system issues or patient/victim issues. Patients injured as a result of malpractice (and their families) deserve fair compensation for the pain and suffering they must endure, often for the rest of their lives. In my opinion, caps on damages would be a significant injustice to injured patients, particularly in the case of babies damaged during the childbirth process who face an uncertain future with severely limited capacities because of a medical error.

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