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Capping Medical Liability

President bush offered a simple solution last week to a particular healthcare crisis hitting about a dozen states. Unfortunately, his solution was a blunt answer to a complex problem that calls for a subtler, less political touch.

Mr. Bush wants a new federal law to prevent state juries from awarding more than $250,000 to victims of medical malpractice for their "pain and suffering." Those types of awards usually come on top of compensation for lost wages or medical costs; they're subjective judgments by juries, based on a victim's claim of long-term emotional or psychological distress.

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The president was certainly right that many of these awards - in the tens of millions of dollars in many cases - have been excessive. He also charges that these megaverdicts are driving up premiums on medical liability insurance, forcing many doctors to flee high-risk specialities or simply retire, while pushing up costs for Medicaid and Medicare.

But before questioning his analysis and proposed cap on these jury awards, it's necessary to cut through the fog of politics around this issue - one that neatly divides Republicans and Democrats.

Both parties rely on millions in campaign donations from separate groups on either side of this debate. Doctors and insurance companies feed the GOP, while trial lawyers who represent malpractice victims funnel a portion of their profits from jury awards to the Democrats. Some cynics even say that neither party wants a solution now for fear of losing these campaign dollars. Others say Bush is simply throwing a PR challenge to Democratic presidential candidate Sen. John Edwards, a former trial lawyer.

Lost in this swirl of cash and politics is the voice of reason and compromise. Also lost is the Republicans' usual faith in states' autonomy, such as their control of the insurance and medical industries. Perhaps cool heads in Congress, untethered to lobbyists, can design a complex solution for this complex problem, or simply support some of the innovative solutions being tried by the states.

For starters, Congress should investigate whether the insurance rate hikes for doctors are mainly a result of bad investments by insurance firms in the 1990s. In past decades, premiums have spiked when the industry's finances went sour.

Lawmakers can also investigate the progress of the medical industry in reducing the number of mistakes that harm patients and bring on liability lawsuits. While the US medical industry is the best in the world, it can crack down more on those doctors who err the most often. And how much are doctors being forced to speed up their work and thus make errors in diagnosis or cure?

If it does weigh a cap on the noneconomic awards by juries, Congress should also look hard at the few states that already have caps, and see if they have suited victims and reined in insurance rates. For many victims, a $250,000 seems too low. Should there be a sliding scale for the awards based on set criteria, instead of one cap?

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And are there ways for the insurance industry to spread the risks of medical liability and thus reduce rates?

Should victims be required to produce more proof of "pain and suffering" than they do now? Would there be fewer excessive awards if a cap were placed on fees for tort lawyers, reducing some of the incentive that drives many of the more-frivolous suits?

Such questions aren't new, but they rarely get answered in the polarized politics of this issue. This aspect of government-managed healthcare requires a wide range of leaders to work together, with none of them beholden to any group except the victims of malpractice.