Jackpot Justice

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This November, my friends and neighbors here in Oregon will be asked to vote on setting caps on "pain and suffering" awards in malpractice suits.

Oregon has an interesting history of health care policy. Before all the state budget cuts over the last couple of years, the Oregon Health Plan offered low cost insurance coverage to our poorest citizens. When the OHP was invented it created quite a stir in that disease and injury were ranked according to the likelyhood of successful treatment and survival rates. For example - if you needed a heart transplant, you were covered; if you needed a lung transplant, you were covered; if you needed a heart and lung transplant, you were not covered. Despite the fact that many people thought the rankings were abitrary and heartless, most people approved of the plan. Budget cuts have pretty much dismantled the plan and it now really only serves for pre and neo natal care.

Then we passed the Death With Dignity Act, which allowed your doctor to help you die. I think most of us are aware of how controversial that decision was (and still is).

As I consider how to vote on setting award limits I find that I am really of two minds.

One side argues that setting limits on noneconomic damages would lower doctor's malpractice insurance and thereby save us all money on health care and make health care more available in rural areas. With the state no longer offering the OHP, finding a way to lower health care costs certainly seems vital, preventative care being so much cheaper than emergency care.

The other side argues that it is unconstitutional to deny anyone a jury trial and that setting limits would allow doctors to get off the hook when they make bad decisions regarding their patients care. I continue to hear horror stories about HMOs denying their patients tests and treatment which result in death and impairment and, as an HMO insured person, these things concern me.

I read the arguments but remain unconvinced by either side. I'm hoping someone here might be able to offer an argument that will persuade me.

Thank you!

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Do you have a link to that actual proposal?

I wouldn't personally support something that limited "pain and suffering" awards but I do support limiting "non-economic damages" (in some cases they are the same but not in all - if the pain causes you to miss work or lose your job it would have an economic impact.)

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The other side argues that it is unconstitutional to deny anyone a jury trial and that setting limits would allow doctors to get off the hook when they make bad decisions regarding their patients care. I continue to hear horror stories about HMOs denying their patients tests and treatment which result in death and impairment and, as an HMO insured person, these things concern me.

I'm a little confused by the word choices here. Even with a cap they'd still get a jury trial. The jury would just be limited in what they'd be able to award.

I'm also not exactly sure what the 2nd sentence has to do with this particular proposal. Isn't that a part of the OHP process? Most states have a system where you can appeal/fight any health program/HMO decisions.

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Hi fishin'.

I do have a link to the proposal but I can't get it to work: www.sos.state.or.us/elections/nov22004/m35_es.pdf

The recap in the newspaper says: The measure would amend Oregon's constitution to impose a $500,000 limit on jury awards for noneconomic damages, such as pain and suffering, in medical malpractice cases. The limit would be adjusted annually for inflation. It would apply to claims based on recklessness or negligence, but not intentional injury or wrongful death.

An earlier, similar law was struck down by the Oregon Supreme Court "because it violated the constitutional right to a jury trial" so says my newspaper.

As I understand it, fishin, many people have had problems when their HMO wouldn't approve tests and treatment. And, again as I understand it, it now has to go to federal court when you have a problem with your HMO. Wasn't that what Aetna Health v. Davila all about?

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Interesting. I just tried to track down the OR Supreme Court ruling to see what their wording/rationale was but I haven't found it yet. If they decided that imposing ceilings on Jury awards violates the Constitution I wonder how they square that with OR's minimum sentencing mandates which appear to be fully Constitutional. (A jury looses the same type of control there.)

Aetna v. Davilla didn't move all HMO disputes to Federal courts. It does cover a lot of them (and that are ERISA-regulated) but I don't know how many that covers in OR. It also only applies to the areas where ERISA has rules. If the specific situation isn't covered under ERISA then it remains in state courts. You'd probably have to find a state by state breakdown to see how many cases used to be tried in state courts and are now in Federal to get a good idea of the impact in OR.

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Now THAT is a good question, fishin, I don't know how they square that. I found out that the name of the case was Larkin v. Senco but I haven't been able to find the decision itself.

I confess that my knowledge of law comes from watching Perry Mason as a child. I was under the impression that juries made reccommendations as to sentencing but the final word was the judges - manditory minimums or not.

Obviously this issue is very complex. Thank you for the tip on where to begin gathering information to make my decision. Luckily I have some fence time before I have to make a decision.

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