This problem is not going away, but supporters of the bill in Congress are unlikely to be able to resurrect their legislation unless significant changes are made to satisfy opponents. There were reports that caps might be doubled under a rewritten bill to secure passage, but we doubt that opponents will agree to any hard cap in this Congress.

The compromise we suggested here in our Feb. 10 edition might get the job done. We urged backers to agree to a soft cap–one in which a judge or jury could toss the cap in cases of gross negligence or egregious incompetence. We noted that for those insisting on some certainty in worst-case-scenario losses, a secondary cap of, say, $1 million might suffice.

As we said back on Feb. 10, this might satisfy those who insist that punitive damages should never be predictable, while appeasing those who insist that they cannot be totally unpredictable if premium hikes are to be brought under control. A soft cap might also satisfy those who want the judicial system to have some discretion to punish clearly incompetent health care providers, while reasonably limiting that discretion.

Of course, it is quite possible that in this tightly split, highly partisan Congress, no compromise on damage awards would be acceptable. In that case, medical malpractice reform, along with a number of other health care related disputes, will be one of the most potent campaign issues for both sides in the 2004 elections.

Reproduced from National Underwriter Property & Casualty/Risk & Benefits Management Edition, July 21, 2003. Copyright 2003 by The National Underwriter Company in the serial publication. All rights reserved.Copyright in this article as an independent work may be held by the author.