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Capping the cost of pain and suffering
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Linda McDougal, who underwent an unnecessary double mastectomy, has become a champion against a federal move to cap lawsuit damages on pain and suffering. (MPR photo)
A medical mistake has propelled a Wisconsin woman into the national debate over lawsuits over pain and suffering. Linda McDougal, who underwent an unnecessary double mastectomy at a St. Paul hospital, has become a champion against a federal move to cap lawsuit damages on pain and suffering. Supporters of the cap say multi-million dollar verdicts are driving up the cost of malpractice insurance and forcing physicians out of high-risk medicine.

Minneapolis, Minn. — Last year, doctors in Minnesota gave Linda McDougal the news that she had an aggressive form of breast cancer. She and her family were devastated. She took her doctors' advice, and three weeks later had both breasts and lymph nodes removed to stem the cancer's spread. But McDougal never had cancer. A pathologist mixed up her tissue sample with that of another woman who did.

McDougal is now suing the pathologist and the pathologist's employer for lost income. She's also suing to recover damages for her pain and suffering.

When McDougal heard about federal legislation to cap pain and suffering awards at $250,000, she was incensed.

"I think people who think it's reasonable have never had an incident as mine affect a family or a friend. I think they're not looking at it with compassion," McDougal says.

It's the emotional part of it that drives these awards. What's the purpose? The purpose should be to compensate people for damages, not to let them turn bad luck into good luck.
- Dr. G. Richard Geier, Minnesota Medical Association

Two groups campaigning against the caps, USAction and the Center for Justice and Democracy, approached McDougal. She agreed to tell her story in TV ads. This is the script for one.

"I asked these doctors specifically, and each one of them said I would have both of my breasts removed. The surgeon finally came in, and she said there was a mix-up at the lab. 'You never had cancer.' I've got 31 inches of scars on my chest. I don't have anything that even comes close to resembling a breast. A group of politicians want to take away my right to a trial by jury. I dare them to go to one of these victim's houses and see how it has affected these families. It's not fair," the ad says.

The ads have run in seven states, but not in Minnesota. Pain and suffering caps are not as big of an issue in Minnesota, which has the second-lowest malpractice insurance premiums in the country.

Dr. G. Richard Geier is a board member of the biggest provider of physician-owned malpractice insurance in Minnesota, and chairman of the board of trustees for the state Medical Association. While personally, he says a case could be made for eliminating pain and suffering awards completely, he says the Minnesota Medical Association supports the $250,000 cap.

"It's the emotional part of it that drives these awards. What's the purpose? The purpose should be to compensate people for damages, not to let them turn bad luck into good luck," Geier says.

Linda McDougal says her case has nothing to do with luck.

"Keep in mind -- here I was laid up in a bed in severe pain for months. I am still recovering from now my third surgery. The only way I can get accountability about what happened to me is to sue for non-economic damages," McDougal says.

While Minnesota's malpractice insurance rates have remained relatively low, the pain and suffering cap is a roaring controversy in other parts of the country. While physicians who practice obstetrics and gynecology in Minnesota pay about $17,000 a year for malpractice coverage, the AMA says their counterparts in Florida may pay $200,000 a year.

AMA President-elect Dr. Donald Palmisano, a vascular surgeon and attorney, says at least 18 states face a medical crisis because doctors have stopped performing neurosurgery and delivering babies, because they can't afford the insurance premiums.

I would never choose to go through this. And simply compensating me for my lost time -- that's what I feel they want to do. They want to treat this like a vacation.
- Linda McDougal

"If you want to give unlimited awards when there's an error, then there's great risk that there will be a state that won't have doctors in a patient's hour of need," Palmisano says. "If a person is harmed by an error, that's tragic and we give our utmost sympathy. But we also know that no amount of money can heal the person, because pain and suffering can't be quantified."

To counteract ads like McDougal's, the AMA is airing its own like this one in Pennsylvania. The script reads like this.

"The reason is simple: doctors can't get affordable medical liability insurance. Trial lawyers have created a system of jackpot justice, where exhorbitant verdicts have triggered massive increases in insurance rates. Some doctors must pay more than $200,000 a year. That's 300 percent more than states like California, which enacted real liability reform years ago. Tell your legislator: we need real liability reform now. When doctors can't get insurance, patients can't get care. A message from the American Medical Association," the AMA ad says.

Minneapolis attorney Kathleen Flynn Peterson is an officer for the National Trial Lawyers Association. Peterson says insurance reform would stabilize premiums, so capping malpractice awards is unnecessary. She says insurance companies are simply feeling the pain of the economy like other businesses.

"The insurance companies make money two ways -- they collect premiums and they invest those premiums in the market, until at such time they have to pay out if a claim is made. "If the investment income is down, then therefore they're going to have to charge higher premiums because they're not used to making those profits," Peterson says.

"They talk about how we lost all this money in the stock market, which is baloney," says the MMA's Dr. G. Richard Geier. "When we look at increases in premiums, the investment has contributed about 5 percent to premium over the last several years. But the increase in losses and legal expenses have added 40 percent in the past five years."

Nevertheless, Peterson says the bottom line is that if the caps are enacted on pain and suffering, society's most vulnerable will the pay the cost.

"Without non-economic damages, there is no incentive to make health care safer. There's no incentive for pharmaceutical companies to make drugs safer if their primary audience is elderly or children, because those people do not have economic losses because they don't work outside the home," Peterson says.

Meanwhile, Linda McDougal faces more surgeries. She says she's having problems with infections, because her immune system was weakened from the removal of lymph nodes.

"I would never choose to go through this," McDougal says. "And simply compensating me for my lost time -- that's what I feel they want to do. They want to treat this like a vacation."

The McDougal ads aired for about a week. USAction says it will have the ads available for use later.

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