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Sunday, January 17, 2010

HB 1068: Cap Medical Malpractice Awards at $100K

Rep. Mike Verchio (R-30/Custer) is putting medical malpractice and tort reform on the Legislature's agenda. Verchio's House Bill 1068 would reduce South Dakota's cap on total general damages for injury or death from medical malpractice from $500,000 to $100,000.

$100,000: that's less than half the average annual salary for doctors in South Dakota... or perhaps the price of Dr. R. Blake Curd's garage.

Before reducing the cost of failure for doctors, Rep. Verchio and his colleagues might want to consider the following:
  • Medical malpractice makes up 1.5% to 2% of U.S. health spending.
  • Texas caps medical malpractice damages at $250K, yet McAllen, Texas, has one of the highest per capita health care spending rates in the country.
  • Most malpractice lawsuits have merit:

    Eighty percent of malpractice claims involve significant disability or death, a 2006 analysis of medical malpractice claims conducted by the Harvard School of Public Health shows, and the amount of compensation patients receive strongly depends on the merits of their claims. Most people injured by medical malpractice do not bring legal claims, earlier studies by the same researchers have found [Tom Baker, "Liability = Responsibility," New York Times, 2009.07.11].

  • In South Dakota, the average time between a malpractice "incident" and a patient receiving payment was 3.26 years (in 2006... and that's the fastest average time in the nation). Three years is a long time to rack up lawyer bills. $100,000 might not cover that, and folks who really have been harmed by medical mistakes might not be able to get a lawyer to help them.
  • From 1990 to 2006, South Dakota reported fewer than 400 medical malpractice payments against doctors. That's 25 a year.
  • In 2006, the median malpractice payment to patients in South Dakota was $75,000, the third lowest in the country, tied with California. A few whoppers must have skewed our mean payment all the way up to $422,000... but these numbers still suggest that more than half of the patients receiving awards don't even reach HB 1068's proposed low cap, let alone the current cap of $500K.
  • 75.4% of South Dakota hospitals registered with the National Practitioner Data Bank have never reported a malpractice payment.
These statistics don't make a slam-dunk case against HB 1068. Still, I get the impression Rep. Verchio is trying to solve a problem that just isn't that big in South Dakota. I can more easily see how capping damages at $100,000 would fail to make a big dent in health care costs and only make it harder for patients to hold hospitals accountable and get justice when harmed.


  1. It's too common for our legislators to "solve" or "fix" non-existent problems, ignoring real ones.

    On the other hand one wonders what Verchio's kidney is worth (a good one), or those of his loved ones. Maybe we should just do away with all medical malpractice and say, "oops" or "kiss-and-makeup" instead.

    Edina urologist removes wrong kidney.
    John Kelley

  2. Put this in perspective.

    A recent Powerball winner won $232.1 million. So at current malpractice value the Powerball win was worth 464.2 malpractice awards; or put another way, the Powerball winnings could be worth 464 wrongfully removed kidney's. One thing that Rep. Verchio understands is that the economy is in deflation. So his bill will further deflate the value of wrongfully appropriated kidneys. Under Verchio's bill a Powerball win of $232.1 million would soon be worth 2,321 kidneys (or malpractice awards).

    So we should ask ourselves whether the Powerball win has a value either 464 (or 2321) times greater than a botched operation (even a very rarely botched operation).
    John Kelley

  3. Also, doctors win about 90% of malpractice cases that go to trial -- they already have a pretty distinct advantage.

  4. There's a reason why people call it a "practice".

    In reality, a person only has 24 months from the date of infraction to bring suit against a physician for malpractice.

    While I believe in tort reform, $250,000 seems awfully low in a case that may end someone's ability to earn an income and provide for themselves.

    Most people want the mega-settlements curbed that get into the multi-millions of dollars.

  5. COrey - good that you bring this out for the public. There are some troubling aspects to this bill.

    First, malpractice verdicts - and this only affects verdicts - are against the fewest of medical providers - the trully bad. So, this guy proposes to protect the very worst. Google Britt Borden and read about one such repropbate that butchered people in our state before moving on. Good docs - the great majority - aren't protected by this as they either are never sued or never get verdicts rendered against them.

    Second, the right to jury was created by our founders. A jury is made up of our citizens. This is elitest legislation that seeks to take away rights from the citizens and flount the will of the founders. This support for government opion over freedom of the person is offensive to conservatives like me. WHo is this big government legislator anway
    --Lee Schoenbeck

  6. Steve Sibson1/19/2010 6:07 AM


    Great points. I am with you on those, so I don't want this critique to take away from that.

    Cory said that medical malpractice takes up only 1.5% to 2% of health care spending. The link he provided said this:

    " Insurance costs about $50-$60 billion a year, Baker estimates. As for what’s often called “defensive medicine,” “there’s really no good study that’s been able to put a number on that,” said Baker."

    Certainly defensive medicine is driven by the fear of malpractice suits. If we had a number, then it should be included. What Cory did here is an example of how statistics are used to mislead.

    Shame on you Cory.

  7. Steve, do you realize how tired and asinine you sound when you take every story of public interest and turn it into just another pissing match in your little defamation campaign against me? I'm willing to bet 99% of readers don't give a hoot about me or you personally and would rather just talk about the actual issues.

    But the stats aren't misleading. Baker's not misleading. He's being as honest with the numbers as he can, and he rejects the sort of baseless ideological assertion you make (there is an inverse correlation between sentences that start with "Certainly..." and the provision of actual evidence).

    Lee's point is important: malpractice verdicts are rare but often necessary. When hospitals make mistakes, patients need some recourse. Capping awards at $100K hamstrings a powerful tool that we can use to hold hospitals accountable.

    Just wondering: if I harm someone in a car accident or through some other carelessness, are there limits on the financial consequences a jury can impose on me?

  8. Steve Sibson1/19/2010 11:46 AM

    "Steve, do you realize how tired and asinine you sound when you take every story of public interest and turn it into just another pissing match in your little defamation campaign against me?"

    Sorry Cory, but your question needs to be directed at yourself.

    Back to the point. I would add that the number of suits filed are adding as much to the costs as the amount of the awards. We have doctors you are human and make honest mistakes while under the gun in a system that has too many patients because they get "free" health care. And when something goes wrong, they expect money. So they blame doctors, as Cory personally attacks a doctor who choses to also be a public servant.

    Cory, if you can't take the heat, then get out of the kitchen.

  9. Actually if I may jump in here. Steve, on your blog you mention Cory in the first paragraph in 5 of your last 10 posts.

    That's pretty big considering all you do is copy paste the rest of the posts.

    Why not come up with some original material from your own mind? Are you incapable of thinking for yourself or must you rely on others?

  10. Steve Sibson1/19/2010 6:02 PM

    "Why not come up with some original material from your own mind? Are you incapable of thinking for yourself or must you rely on others?"


    Why do you personally attack me for how I run my web site instead of dealing with the substance and content you find there?

    And Cory,

    When are you going to face the reality of your own personal attacks?


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