The usual line of tort reform from the GOP is that this should be an integral part of any HCR bill. For years they've lived in a world where this is the number one contributor to costs. Yes, what are they doing in states where Republicans do better than Democrats? Hmmmm......
Med-Mal Caps for States with 2 GOP Senators:
Alabama: None (state court declared unconstitutional)
Arizona: None (state court declared unconstitutional)
Georgia: $250,000 on punitive damages only
Idaho: $250,000 on non-economic; $250,000 punitive
Kansas: $250,000 on non-economic; $5 million punitive
[Mitch McConnell on Tort Reform:
"Then we could start over and end junk lawsuits against doctors and hospitals that drive up costs, something the majority didn’t find any room for in their 2,074-page bill — not a word about controlling junk lawsuits against doctors and hospitals," McConnell said Dec. 1, 2009.
Maine: Limits only for wrongful death cases ($400,000 non economic; $75,000 punitive)
Mississippi: $500,000 non-economic; none on punitive
Oklahoma: $300,000 non-economic; none for punitive
South Carolina: None
Texas: $500,000 non-economic; none for punitive
Utah: $400,000 for non-economic; none for punitive
Wyoming: None (state court declared unconstitutional; ballot effort in 2004 failed)
Med-Mal Caps for States with 1 GOP Senator:
Alaska: None (declared unconstitutional by state court)
Florida: $500,000 non-economic; $500,000 punitive
Indiana: $1.25 million total limit
Louisiana: $500,000 total
Missouri: $565,000 non-economic; adjusted annually for inflation
Nebraska: $1.75 million total
Nevada: $350,000 non-economic; $300,000 punitive
New Hampshire: None (declared unconstitutional by state court)
North Carolina: None on non-economic; $250,000 punitive
Ohio: $350,000 on non-economic
So, let me get this straight....Republicans want tort reform for Med-Mal. Yet, 6 of the states with two GOP senators--including the states of the Minority Leader, Minority Whip and last presidential candidate--don't have tort caps....
Seems like hypocrisy to me....
UPDATE: Thanks for the comments. To clear up some issues...
The med-mal caps are almost always the start of discussions of tort reforms. The reason has less to do with what happens at trial so much as what happens along the way. Essentially, the cap figure sets the limits of negotiations for when lawsuits are first brought. Simplifying tremendously:
Thing happens. Person decides s/he was wrongfully injured, contact plaintiff's attorney. Plaintiffs' attorneys get paid only when winning (they will charge their client for some expenses/fees, but otherwise don't make the big bucks until the case is resolved). Therefore, it is int their interest to get the most money from the defendant as possible while doing the least amount of work.
Throughout the process, both sides are working towards what will be the resolution point--typically the place where the case goes away at the optimum price point--for the plaintiff, where the most money is paid in the least amount of time; for the defendant where the least amount of money is paid and where the plaintiff signs a confidentiality agreement.
Because of this dynamic, very few med-mal cases ever get to trial. However, while there are legal ways of making cases go away through the courts (summary judgment, etc.), these have high burdens of proof, and most judges tend to let cases go into the discovery phase. Today, since the passage of HIPAA, the plaintiff has a leg up in that s/he only has to produce records that s/he has authorized. Back in the day, subpoenas for any medical record (and sometimes psych records where they existed) could be issued without the consent of the patient.
As the process moves forward, attorneys' fees pile up for the defendant (often $200-500/hour), pressuring the defense to settle out of court. So, where do negotiations begin? The caps provide the staring point. If in a cap state, the cap represents the most for pain and suffering (plus any lost wages). Punitive damages are very difficult to get, so it's usually the non-economic amount that represents the most money. If there is no cap, then a good plaintiff's atty will set whatever is thought to be the optimum value of the case and go from there, especially if the case is compelling.
This has led to forum shopping by plaintiffs' attorneys, where the hope is to find the place that will have no caps and where juries are seen as sympathetic to plaintiffs. Again, the pressure is to make the other side negotiate a settlement.
Now, why is this hypocrisy? Of the states above with no non-economic caps, 18/41 GOP senators are represented. While, obviously, the senators are not part of state government, the fact that they are calling for a national change when their state parties have not succeeded in bringing change to their own states, is hypocritical. The Southern states in particular are egregious.
Personally, having worked for a corporate defense firm and seeing some pretty silly lawsuits, I could see the reasoning for caps. One the other side, there were cases when the plaintiff was really and truly injured and where the cap of the state in questions was really insufficient to the damages.