Health and Human Service Secretary Tom Price and congressional Republicans seek to replace the Affordable Care Act with a law that will make health care affordable for all Americans.
At what price?
Both President Trump and Price have criticized "frivolous" medical malpractice lawsuits for contributing to the cost of health care and health insurance. Insurers are said to charge more to recoup the costs of lawsuits; doctors are said to order unnecessary care for fear of legal reprisal. So the new Trumpcare will limit the rights of patients to a civil jury trial and will cap the damages of those most severely injured by their doctor.
Melania Trump can sue for $150 million for an injury to her reputation, but a patient rendered quadriplegic or brain damaged by medical error will be limited to $250,000 for pain, suffering, and loss of enjoyment of life. Somehow, this cap on noneconomic damages lowers the cost of health care. I do not believe there is hard data really linking the two.
By branding many cases as "frivolous lawsuits," Price and Trump try to equate malpractice cases to a form of "blackmail." In fact, these are not easy cases for a lawyer to prosecute. It is not a FedEx truck running a red light. To the lawyer, a malpractice case is heavy lifting and a big financial risk, requiring a significant effort in manpower. And, because an injured patient cannot afford it, out-of-pocket costs must be advanced to hire medical experts to prove the case.
No lawyer undertakes such a case frivolously. To resort to monikers like "frivolous lawsuits" is to persuade by emotion and not fact. Let's not forget that, next to heart disease and cancer, medical error is the third leading cause of death in the U.S. annually. If serious injury is added to the mix, the numbers are astounding. These are Americans who can least afford to pay the price of Trumpcare.
Most Republicans strongly believe in states' rights and much of Price's press conference on March 7 was a nod to the states to manage local health care. Yet a pendant provision in Trumpcare limiting a patient's right to full damages in a malpractice case federalizes state tort laws.
A doctor's litigation risk varies widely from state to state. Interest groups and insurance markets, as Price recognized, vary among the states. Frankly, the public's opinion of lawsuits and attitudes toward compensation for patients wrongfully injured varies dramatically state to state and even city to city.