New England Journal of Medicine Against Non-Economic Damage Caps

A recent peer-reviewed article in the New England Journal of Medicine makes the argument that non-economic damage caps in medical liability cases are ineffective at controlling the cost of healthcare and ultimately have a negative effect on overall patient safety. The article continues to argue that it is not a lack of non-economic damage caps, but excessive medical malpractice insurance company profits, a lack of preventative healthcare and end-of-life care that is bankrupting the United States healthcare system.

This is a surprising article because the New England Journal of Medicine is highly respected in the physician community.

Medical malpractice insurance companies argue that caps on non-economic damages afford them predictability in claims frequency and jury verdicts, allowing them to reduce the cost of medical malpractice insurance. They also point to surveys that indicate physicians practice defensive medicine, causing the cost of healthcare to rise, due to a fear of medical malpractice lawsuits.

The New England Journal of Medicine article suggests what is referred to as a safe harbor system for handling medical malpractice claims. Under the safe harbor model, physicians are considered not to have committed medical malpractice if they did not order certain over-employed and costly medical tests. It is then up to the plaintiff’s attorney to prove that not ordering the test was a violation of the standard of care.

I was surprised there was no mention of the Massachusetts model, which is a recently implemented disclose-and-apology model that many in the New England region have championed. Under this model, when a patient is harmed, the physician will have the opportunity to explain what happened to the patient, make an apology when appropriate and then make an early offer of compensation. If the physician does not feel he or she acted outside the standard of care, or the patient refuses the early offer, the case may go to litigation. According to proponents of the system, it is more fair, less hostile and will lead to greater patient safety.