In 2000 the National Academy of Sciences published To Err Is Human. This highly publicized report revealed that reliable studies estimated that 44,000 deaths occur annually due to medical errors in the United States. Nevertheless, last winter (2003), the West Virginia Legislature with the cooperation of Governor Bob Wise, bowed to pressure from insurance industry lobbyists and physician's organizations and, yet again, placed restrictions on the compensation available to victims of bona fide, proven, medical malpractice. For patients, and all the rest of us who will be patients at one time or another, the most significant change is the limits placed on the recovery of damages, meaning the money you can recover if you are the victim of medical malpractice. The latest (and probably not the last) round of amendments to the Medical Professional Liability Act caps the recovery of non-economic damages at $250,000. What does that mean? It means that the compensation for mental and physical pain and suffering, disfigurement or similar harm is limited to $250,000. Of course, if you are a 20 or 30-something wage earner and you are disabled, you may be able to recover for lost wages that are proven to be reasonably certain in addition to the $250,000 for pain and suffering. That is great for working men and women, particularly those in early to mid-stage of their career. But, if you are nearing retirement, retired, or if you are a homemaker, disabled or have no income, then you are limited to the $250,000 cap for non-economic damages, in addition to the actual out-of-pocket medical expenses, which will immediately go to the medical providers or to pay back your insurance company anyway. And out of that $250,000, you must pay attorney fees and the expenses of the litigation. The attorney fees are typically 33% to 40%, and the expenses routinely run $25,000 to $50,000. I'll do the math. $250,000 minus $83,333 (attorney fees) minus an estimated $40,000 (expenses), equals about $126,667.

Linda McDougal was perfectly healthy when her doctor disfigured her by performing a double mastectomy after looking at x-rays belonging to another patient who did had cancer. Linda did not have cancer. Is just over $100,000 enough to compensate for her loss in light of the gross incompetence of her doctor?

The deterrent value of compensatory damages just doesn't exist in the field of medicine any more. At a maximum loss of $250,000 per claim, risk managers and insurance adjusters have very little down-side risk, and they will fight like dragons on every claim. I know prominent, experienced, expert trial lawyers who have told me that they will not take medical malpractice cases any more. It involves too many hours of work, with too much risk of losing and too little recovery if you win. Make no mistake, this legislation will have an extreme chilling effect on medical malpractice litigation. It is ironic that the government has taken sides against the patients in this historic battle pitting consumer rights against insurance company profits. It is particularly odd for this to occur simultaneous with the open admission that medical errors cause more harm than workplace injuries, car wrecks, and numerous other categories of untoward events.

If airplanes started dropping out of the sky or tires started falling off vehicles and killed 44,000 people this year, all other business would be set aside until every branch of state and federal government took measures to enhance the standard of safety. But if doctors and nurses are killing people, the fact that they are not intentional injuries seems enough justification to circle the wagons and protect their interests at the expense of those who are injured. That kind of raw political clout may be the dark side of the carefully cultivated image of the medical practitioners as affluent but affable Marcus Welbys.