The current system is indeed a lottery, although not the kind one wants to win, because some victims get a huge settlement and others get nothing, owing to the vagaries of the jury pool and the ability of their attorneys to invoke sympathy.
An ideal system would pay all compensatory damages (that is, make people financially “whole”) and pay all like victims a similar amount for pain and suffering.
I would take the idea of pain and suffering caps in malpractice suits a lot more seriously if:
Proponents would stop treating the $250,000 figure as if it were part of the Ten Commandments. That number was originally picked out of a hat in California in 1975 and hasn’t been adjusted since.
The cap were indexed for inflation. If that had been done in California, the current cap would be nearly $1 million.
The cap were calculated on an annual basis. How about a cap of, say, $50,000 per year instead of a single number that’s the same regardless of whether the pain lasts for five years or 50?
Pain and suffering are very real, and as Kinsley points out, very few of us would voluntarily trade the money for the pain if we were given a choice. But even so, since James’ solution doesn’t seem to be in the offing, I don’t think I would have a real problem with caps if they were calculated fairly and truly designed to make equitable payouts to all. Unfortunately, demonizing juries and portraying victims as opportunistic greedheads seems to win more votes than genuinely trying to solve the problem.