The Debate About Pain and Suffering Awards

"The trial lawyers say they are offering a useful and valid service and defending people's rights. The doctors say the jury awards are now way out of hand and crippling the health care system. How can we untangle this Gordian knot?"

by Marty Poehler

A hot debate rages now in America about the awards juries give to victims of medical malpractice. People are suing and requesting monetary awards for bodily damage they have experienced, and for projected future loss of income. They frequently ask for and receive additional damages—for pain and suffering they argue resulted from the substandard treatment they received from their doctors. These pain and suffering awards can amount to millions of dollars.

The Debate

The debate is heated because doctors' malpractice insurance companies cover these multimillion-dollar jury awards. Needing to stay profitable, these companies raise their rates to doctors, who then have to raise their rates to patients. Costs zooming higher than the orbit of Saturn mean many Americans now can't afford health care.

Speaking for those who are suing, trial lawyers say these people have had their rights violated at the hands of negligent doctors. The awards these people receive for pain and suffering they have experienced are justified, say the lawyers. They add that the real problem is that the medical profession should monitor itself to remove substandard doctors. If they did this, they continue, there would be far fewer of the medical abuses that lead to sensational trials, and the problem of high awards would simply go away.

The doctors say that they give a high standard of care and they do closely monitor themselves. But they say nobody is perfect and everybody makes mistakes, including doctors. They say that because they have had to raise rates to patients, health care costs have skyrocketed. Then, as doctors have found it difficult to pay the premiums and still keep their businesses profitable, many of them have left the profession, leading to a shortage of doctors. Both of these effects, they say, make health care increasingly harder to pay for, or even to find at all, locally, for many Americans.

The trial lawyers say they are offering a useful and valid service and defending people's rights. The doctors say the jury awards are now way out of hand and crippling the health care system. How can we untangle this Gordian knot?

Different Kinds of Awards

A good place to begin is by looking at the awards themselves. Justice usually means restoring to people things that they have had wrongly taken away from them. The cases involving actual damage awards and future loss of income awards are fairly straightforward. In an actual damage award, a jury decides to award an amount of money back to the wronged person that corresponds to what he or she has actually lost. In a future loss of income award, a jury awards to the aggrieved person the amount the jury projects this person will lose in income over his or her lifetime. In these two kinds of cases juries operate objectively, looking to the facts as they understand them, to grant each particular award.

The Battleground

The argument battleground is pain and suffering awards. Judges have allowed jurors to decide amounts of monetary awards for pain and suffering resulting from doctors' negligence. For justice to be accomplished, the people who have been wronged need to have what was wrongfully taken from them restored to them. What people have lost regarding pain and suffering are things inside them—qualities such as being able to deal with the world in a healthy way, having an inner sense of wellness and confidence, and being able to trust people. These people's psyches or self-images have often been damaged. These qualities that have been lost or damaged are hard-to-define, so each loss can only be measured subjectively. So each jury cannot make an objective award, matching up the money granted with the "actual damage". It is forced to make a subjective award, based on what it senses would be the correct monetary amount for the pain suffered.

Are Subjective Awards Appropriate?

Juries try to answer the question: What monetary value is appropriate for the pain suffered? We are all probably now asking ourselves this other question: How can anyone assess that? At best the jury is only making a shot in the dark, by choosing an amount of money that will supposedly counteract the pain and suffering the person experienced.

Taking this argument further, can any amount of money, even a huge amount, heal these "inner wounds" to restore the person to health? I think we'd all say that when we are wronged or hurt inside, many forces work together to make us healthy and whole again. One of these forces may be money—to pick us up and get us going again. Another is for the person who wronged us to voluntarily say to us that they are sorry for what they did. Undoubtedly another is our talking over what has happened to us with our friends and family—those we trust—to gain an understanding of what has happened and how we can rebound from it. Sometimes professional counselling is helpful, while other times it is not. Prayer or inner contemplation often helps healing. Often the passage of time brings us into an assurance that what happened to us can't harm what's deep inside us, and that we can be strong and secure despite what has happened to us. As the saying goes, "Time heals all wounds." In summary, it's more than likely that money by itself doesn't give back to a person who has suffered severely all that he has lost. What effectively can do this is a combination of advice and compassion from others, prayer and inward searching, time, and perhaps a monetary award.

Harmful Consequences of the Current System

A harmful consequence of the current system for awarding substantial pain and suffering awards is the resultant increase in malpractice insurance premiums to doctors. The problem here is that insurance companies charge high premiums to ALL doctors, not just incompetent ones. Two things follow from this. First, because doctors have to pay higher malpractice premiums, they have to raise their rates to patients. This makes health care expensive and difficult to afford for many Americans, so many have to go without care they need. Second, many doctors have left the profession because of the difficulty in keeping their heads above water financially. I know of people in medicine who have left their jobs for this reason, and you probably do too. The problem of there not being enough doctors to give health care is already with us, and it threatens to escalate unless something is done about it.

Earlier we noted that people who've suffered from medical incompetence, and doctors themselves, are concerned about the problem of doctors who are incompetent. It is unrealistic to think that high profile pain and suffering awards will cause the problem of chronically negligent or unqualified doctors to go away. Membership and regulatory bodies for doctors and run by doctors already existence. These bodies have goals. Their goals specifically state their aim is to promote excellence in medicine. They should be faithful in accomplishing their goals, and should discipline or expel incompetent doctors. If these bodies are not willing to do this, Americans need to press their government to enact laws which will effectively monitor, discipline, and if necessary expel incompetent doctors.

A Solution

We talked earlier about justice. We said that money awards from juries to aggrieved persons were a subjective shot in the dark to match up the award with the pain and suffering felt by the victim. Juries in these cases have little chance of bringing about "just" awards. We added that money on its own in almost all cases can not bring about the restoration—the inner healing—needed to bring true justice for the wronged person. We also said that the system of granting huge pain and suffering awards has the unfortunate consequences of making health care extremely expensive, and of forcing many doctors to leave their profession.

Here is a sensible solution to these problems of the current award system. America should make laws that rule out pain and suffering awards altogether, or at the least, set an upward limit well below the millions of dollars now being awarded. Ending the huge pain and suffering settlements will allow doctors to pay less in malpractice insurance premiums. This will allow them to lower their rates to their patients, and more people will be able to afford health care. In addition, doctors will find it easier to stay afloat financially, with fewer of them forced to leave the profession. This will allow more people to receive health care in their own local area. A law should be enacted so the health care benefits of all the people are not held hostage to the desire for wealth of a few trial lawyers and aggrieved individuals.

The whole subject of personal suffering and pain seems to be a deep mystery that we can only inadequately grapple with. We are clumsy as we approach it with our logic and our usual way of dealing with problems. It is a sobering subject that we still have much to learn about. It seems to involve our very inner beings. Probably our inner resentment of injustice can only be relieved by our really forgiving the perpetrators.

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