Editorial: Punitive damage cap needed in malpractice legislation Editorial: Punitive damage cap needed in malpractice legislation


Published Jan 8, 2013 at 04:00AM / Updated Nov 19, 2013 at 12:31AM

The effort to address medical malpractice awards will be back before the Oregon Legislature this session with at least two different approaches.

A bill in the works (LC299) would set a limit on punitive damages at three times economic damages and noneconomic damages.

The governor is also planning to submit a proposal based on the work of his Patient Defensive Medicine workgroup. That plan is expected to include a three-tiered system aimed at encouraging patients and medical providers to talk rather than sue.

The governor’s study group grew out of the 2012 legislative session’s failure to address the issue. Republicans, who have long sought limits on malpractice claims, tried to inject the issue into a debate on the overhaul of the Oregon Health Plan.

At the time, the governor acknowledged liability limits as a “legitimate issue” but said the one-month session was too short to work out details on such a complex subject.

The governor’s plan seeks to create a more open system that advocates say would prevent errors and help patients.

It would require medical providers to file a notice when a serious error occurs and then meet with the patient to seek resolution. If no agreement could be reached, mediation would follow. Legal action could be next if the mediation is unsuccessful.

Advocates hope such an approach would encourage physicians to talk with patients, thus increasing the chance of learning from errors and avoiding repeating them. Also, the idea is that patients would get compensation while reducing costs in litigation and defensive medicine.

Legislation is still in the drafting stage, according to the governor’s office, and is expected to be ready by the end of the month.

In contrast, LC299 focuses simply on capping punitive damages, which advocates say would cut the cost of health care by lowering malpractice premiums and reducing unnecessary tests and procedures ordered by doctors to guard against lawsuits.

There’s potential in the ideas behind the governor’s plan, although the details are yet to come. But we believe a cap on punitive damages — as proposed in LC299 — is critical to making any significant dent in the problem.