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Beyond Malpractice

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An ongoing aspect of this year's election campaigns has been the quiet but persistent lobbying by representatives of the medical profession on behalf of proposed caps on damages in medical-malpractice suits. During this year's session of the Tennessee General Assembly, members of the Memphis Medical Society joined colleagues from other parts of Tennessee in lobbying efforts on behalf of legislation to that end. The effort has continued in forums hosted by members of the society and involving aspirants for various legislative positions.

One such recent forum, for candidates running for state representative in Districts 96 and 99, turned out to be illuminating in ways beyond those intended by the sponsors. The first half of the session focused on the proposed cap of $250,000 for "non-economic" damages, i.e., those reflecting permanent injury to the alleged victim's quality of life.

Adherents of the proposal maintain that unscrupulous trial attorneys have learned how to venue-shop and work juries to award inflated financial judgments.

Defenders of the current cap-free system offer many refutations to these allegations, citing patients who have endured horrific, long-term consequences of botched medical procedures and maintaining that the proposed legislation would curtail citizens' rights to seek redress.

Given that the doctors had the forum to themselves, the assembled legislative wannabes tended to tell their medical hosts what they wanted to hear. There was a shift of emphasis, though, in the second half of the forum, when the subject abruptly changed to raising the tax on cigarettes during the next session of the General Assembly. One of the would-be legislators, who had been a steadfast proponent of malpractice caps, responded with equally animated opposition to such a tax and offered as justification an argument based on conservative free-market theory.

He must have expected this would be greeted with approval, or at least toleration, on the part of his medical auditors, who had only moments before been discussing their profession in pure dollars-and-cents terms.

Instead, his physician hosts began insisting on such a tax, both for revenue purposes and, more importantly, as a means of suppressing the rate of tobacco addiction -- especially on the part of youthful smokers.

Moral of the story? Opponents of malpractice caps in the forthcoming legislative debate should not lose sight of the fact that their medical adversaries are, after all, healers by profession. And neither, in pushing their case, should the physicians themselves.

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