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Randi McGinn, an Albuquerque, New Mexico, attorney who says he has represented both patients hurt by medical malpractice and an occasional doctor sued unfairly, has written the clearest, most convincing argument against caps on medical malpractice I have seen to date.

I have posted the entire article because it is that good. I hope Randi understands.

Malpractice Caps Limit Care

When it comes to hospital patient safety, New Mexico ranks among the bottom five states. One reason is that, for the last 30 years, New Mexico has had a cap on damages in medical malpractice cases.

Instead of being held responsible for amputating the wrong limb, giving the wrong, death-dealing medication or leaving patients languishing in the halls because of inadequate staffing, hospitals and health care providers under the New Mexico Medical Malpractice Act only have to pay the first $200,000 of the damage they cause.

Patients are limited to an additional $400,000 from the state Patient’s Compensation Fund, plus future medical bills, if those exceed the cap.

The caps work a particular hardship in cases where a family’s breadwinner is killed by malpractice. And, as an unintended consequence of the way the law is written, it is cheaper to kill a patient than leave them brain injured, a paraplegic or suffering from some other condition that will require a lifetime of care. These capped amounts have been raised only once, in 1992.

Like a child who is not required to pay for his wrongdoing, hospital administrators and HMOs in New Mexico who are not accountable for the full amount of the damage they cause have no economic reason to improve patient care.

When the for-profit hospital has the choice between hiring a qualified surgeon or, for half the price, a shady doctor with a string of malpractice suits in another state, it can hire the bad doctor without fear that a New Mexico jury will ever be able to hold anyone accountable for this bad decision.

When nurses complain that the hospital’s cost-cutting is leaving them short-staffed, without the ability to provide adequate patient care, a New Mexico hospital can choose to simply ignore them. If nurses quit, hospitals can then hire cheaper, less experienced staff.

When good doctors and nurses who care about their patients advocate for appropriate, but expensive, tests or treatment, their requests can be turned down with impunity by insurance company bureaucrats.

The worst of it is that, contrary to popular belief, the cap on damages has not stopped the exorbitant rise in medical malpractice premiums. Since the cap was set at $200,000 in 1994, medical malpractice premiums for New Mexico doctors have increased by more than 100 percent.

When compared to Indiana, another capped state which allows patients a higher recovery of $1 million, plus future medicals, the insurance premiums for New Mexico doctors are 40 percent higher– and buy less coverage than Indiana doctors get.

The increase in medical malpractice premiums is not caused by citizens coming to court to hold health care providers responsible for their medical malpractice.

As the nation’s largest malpractice carrier, GE Medical Protective, admitted when it filed for a rate increase the year after convincing Texas to set a $250,000 limit on damages, caps on non-economic damages reduce costs by the smallest of margins (1 percent) and do not affect the amount of premiums charged.

For the last decade, the number and size of verdicts in medical malpractice lawsuits have remained the same across the country and has actually decreased in New Mexico.

If there’s no litigation crisis, why do insurance companies keep raising doctors’ rates? The rate increases coincide not with big verdicts, but with downturns in the stock market. When the insurance industry loses money in its portfolio, it makes up for it by raising doctors’ rates.

Who should pay for injuries resulting from inexcusable neglect when life-saving treatment is denied, when a normal newborn is left brain damaged for life, when the wrong kidney is removed during surgery? Should the innocent patient and taxpayers bear the cost through Medicaid, Medicare and welfare benefits, which give the injured person no dignity and little choice?

No, the wrongdoer should pay.

The current caps on damages have already caused a crisis of unsafe medical practice in New Mexico. This is reflective of similar unsafe medical care across the country, where more than 100,000 people die each year because of medical malpractice– as compared to 17,000 people a year killed by drunk drivers.

Caps on damages don’t stop frivolous lawsuits, they merely prevent the necessary ones– those lawsuits where juries can sanction the worst medical abuses in a way that forces the medical establishment to make decisions based on the human toll rather than the bottom line.

Rather than federalize medical malpractice caps, as is being proposed in the U.S. Senate, our lawmakers should learn a lesson from the New Mexico experience: Caps on damages encourage bad medical care by allowing wrongdoers to escape responsibility.

New Mexico should re-examine its system and either remove the existing caps so wrongdoers are held fully responsible or at least raise the current caps to 2006 dollar value, with a cost-of-living increase built in for future adjustments.

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