Two Wisconsin legislators, Sen. Scott Fitzgerald (R-Juneau) and state Rep. Curt Gielow (R-Mequon), recently introduced legislation to cap medical malpractice lawsuit awards at $750,000. An attempt to enact similar legislation but with a $350,000 cap was struck down in July 2005.

There are fundamental flaws with not only the spirit of the law but also the letter of the law. As I see it there are really two issues here;

1) What damage occurred and how much the victim(s) should be compensated for that damage?
2) Why should the legislature be allowed to dictate what happens in the courtroom?

If a jury decides malpractice occurred and a $5,000 award is in order, the victim(s) should receive $5,000. If the jury decides malpractice occurred and a $5,000,000 award is in order, the victim(s) should receive the full $5,000,000, not some lower arbitrary cap set by the legislature.

Just as there are two issues there are also two real solutions. The first is the insurance companies. If the doctors complain that malpractice insurance is so unbelievably expensive perhaps there should be some regulation of insurance rates. I work for an insurance company; I know how they operate. There is plenty of room for regulation to curtail the 'abuse' of artificially high premiums if it is actually occurring (I know what doctors earn and I know what med/mal insurance costs - it's not as horrible as everyone makes it sound).

The second issue is the doctors themselves. The purpose of having medical malpractice insurance is to protect your personal assets by creating a "fund" that malpractice awards are paid from. If the doctors in Wisconsin are so horrible that the claim payouts and payout rate is so high that the premiums have to be jacked up to unreasonable levels perhaps there is a problem with the quality of the doctors in Wisconsin and we should address that.

Simply placing caps on lawsuit awards will not fix any problems. If the problem is that medical malpractice insurance premiums are too high, let's deal with that by regulating med/mal insurance companies. If the problem is that too many claims are being paid out with very high dollar amounts then we need to address the competency of our doctors.

Here's another little-known fact about medical malpractice suits; the families get realtively little when awards are made. Attorneys take their cut (from 10% to 33% depending on the situation and attorney) PLUS they take out their expenses which can range in the tens of thousands of dollars by the time a case goes to court. Placing caps on awards would essentially limit the payout to just enough to cover expenses and lawyer fees and leave the family with virtually nothing. In other words, nobody wins.

I agree that there is a problem with medical malpractice - but it can't be resloved by enacting artifical caps.