Another Aspect of the Big Lie

"It’s not personal responsibility I have a problem with.  It is the constant threat of litigation that gets to me.  And that’s why we need to cap damages in malpractice lawsuits."

How many times have you heard some member of the health care industry say that? 

I guess that the argument means that the industry doesn’t mind valid lawsuits (how can they say anything else?) but they don’t like non-meritorious lawsuits.  But how does capping damages stop non-meritorious lawsuits?  Capping damages only limits recoveries for claims already found to be meritorious.

The bottom line is that the industry doesn’t trust juries.  It don’t think any claim has merit unless they say it has merit.  So, even if a jury demanded by and selected by both parties decides a claim has merit they want to cap damages because they don’t trust it to act fairly.  Hold it – that’s not correct either.  They will accept a jury acting unfairly by giving too low an award of damages – otherwise they would set a floor on damages.  (Every death case is worth at least x but not more than y.) And they don’t trust judges either – trial judges or appellate judges – the men and women who can adjust or reverse jury verdicts not based on the facts or the law.

Now, on the threat of litigation.  Let me tell the industry this.  The rest of us feel it every day, too.  Every single day.  Those of us who have enjoyed the benefits of higher education and made the decision to serve the public go through the same experience.  It is a fact of life – the  thing that makes us think just a little harder, spend a couple extra minutes on that issue, and document just a little better.  And for that extra risk we professionals enjoy a better lifestyle than the men and women who paid the taxes to fund the colleges and universities that got us to where we are and who pay us to use our education and talent to serve them.  I think the threat of litigation is a good thing, not a bad thing.

To be sure, we need to find a better way to ensure that frivolous cases are kept out of the courthouse.  But capping damages on meritorious claims won’t do that.

And they know it.