Medical Malpractice Tort Reform - We Are Already Suffering and Don't Need More

If you listened to the rants and harangues of those trying to kill the House health care bill on Saturday, you couldn't miss the endless blathering about tort reform, a term that almost no one really understands unless you happen to be a victim of medical malpractice or corporate wrongdoing. And then, you know.

Tort "reform" is a doozy of a misnomer. There is certainly nothing positive or beneficial about it. Tort reform laws, which now exist it nearly every state (although you'd never guess that after listening to those complaining how much we need it), make it more difficult for average people who have been injured, assaulted, or harmed in any way, to sue those responsible. The tort reform movement was created and funded by insurance companies, manufacturers of dangerous products, the tobacco industry, the medical profession, and other industries and professions. This movement is backed by enormous sums of money funneled primarily into conservative "think-tanks," public relations, polling and lobbying firms. Tort reforms always hurt patients, consumers and average people. They are also extremely dangerous for the rest of us.

Even the Congressional Budget Office, who guessed there could be "savings" from enacting national menu of brutal "tort reforms," cites studies showing that if enacted, thousands more would die every year. Some savings. What's more, chances are you already live in a state with brutal "tort reform" laws on the books. Ask the Olsen family from California or the Gourleys from Nebraska, both with severely disabled teenage boys who traveled to Washington D.C. last month to plead that Congress not do to the entire country what lawmakers already did to them.

Steven Olsen is blind and brain damaged because, as a jury ruled, he was a victim of medical negligence when he was two-years-old. He fell on a stick in the woods while hiking. Under the family's HMO plan, the hospital pumped Steven up with steroids and sent him away with a brain tumor, although his parents had asked for a CAT scan because they knew Steven was not well. (So much for "defensive medicine.") Steven Olsen came back to the hospital comatose. Had he received the $800 CAT scan, which would have detected a growing brain mass, he would have his sight and be healthy today.

A jury awarded $7.1 million in non-economic damages for Steven's avoidable life of darkness and suffering. However, the jury was not told of a two-decade-old cap on non-economic damages in the state -- the very law that conservatives want imposed on the nation and that CBO "scored." The judge was forced to reduce the amount to $250,000. The jurors only found out about it by reading it in the newspaper, provoking the jury foreman write a scathing letter to the editor in the San Diego Union Tribune about this horrible California law.

Colin Gourley suffered terrible complications at birth as a result of a doctor's negligence. He has cerebral palsy. He could not speak until he was five. Irregular brain waves and the amount of time he has spent in a wheelchair have affected his bone growth. He has been through many surgeries. His twin brother, Connor, survived without injury.

A jury ruled that Colin was a victim of medical negligence, finding that $5.625 million was needed to compensate him for his medical care and a lifetime of suffering. But Nebraska's law -- a cap on damages -- severely cut this jury verdict to a fraction of what Colin needs. As a result, Colin will have to rely on the state for assistance for the rest of his life. His family had to move from their home to pay for his care. They are now having to fight Medicaid for Colin's continuing treatment.

In 1975, Indiana lobbyist Frank Cornelius, whose clients included the Insurance Institute of Indiana, helped secure passage of "tort reform" in Indiana. As he wrote in the New York Times on October 7, 1994,

I argued successfully that such limits would reduce health-care costs and encourage physicians to stay in Indiana -- the same sort of arguments that now underpin the medical industry's call for national malpractice reform. Today, from my wheelchair, I rue that accomplishment.

That is because beginning in 1989, Cornelius experienced a series of medical catastrophes -- malpractice -- that resulted in his "wheelchair confinement, respirator-assisted breathing and constant physical pain." The law he helped pass prevented him from receiving enough compensation for this. He has since died.

The vast majority of states already have "tort reform." Right now, the medical profession has more liability protections than any profession in the nation. They don't need more, and we don't need more.

 

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Comments

[pinball]

"I admit that physician commit medical malpractice. I believe that injured patients should be compensated for their injuries. I would be willing to support a system without caps so as not to deny an injured individual their full compensation..."

I give you credit...you at least sound reasonable. The problem with the doctor's lobby is it has clung to the 250k cap and won't let go--not even allowing exceptions for severe injuries or gross negligence. They know and don't care that it's eliminating sound and fair cases while providing none or under compensating injured patients.

[MKMD]

Pinball, I not only sound reasonable, I am reasonable! While I don't always succeed, I try to understand both sides of an issue, even one as volatile as tort reform. www.MDWhistleblower.blogspot.com

[MKMD]

Joanne, the estimates for defensive medicine you quote are absurdly low., See http://bit.ly/4mAenS
I admit that physician commit medical malpractice. I believe that injured patients should be compensated for their injuries. I would be willing to support a system without caps so as not to deny an injured individual their full compensation. I have supported caps here in Ohio, as physicians had no other remedy or relief from an oppressive legal system. Northeast Ohio was one of the most legaly inhospitable locations in the country, and not because we were any more negligent than other MDs. However, we need a system that filters out from the beginning innocent physicians. We are not satisfied to hear arguments like, 'let the jury system work', etc. This sounds okay in theory, but is very unfair in practice to innocent physicians. In Ohio, for example, a physician in any specialty can sign an affidavit of merit attesting that a physician in another specialty has been negligent. This lights the fuse for the case. Incidentally, this 'expert' is not subject to examination by the physicians attorney. Do you think this is an appropriate filter? Is there any aspect of the current tort system that you feel is flawed?
www.MDWhistleblower.blogspot.com

[Joanne Doroshow - Huffpost Blogger]

Yes, here is a great proposal that we raised in New York State and for which we received support from doctors. The problem for most doctors is that they are pulled into lawsuits initially before the patient has a chance to learn everything that happened, because if they are not, the statute of limitations could run for those eventually found responsible. Many are eventually dismissed from the case, but why put them through this? This can be solved by changing state statute of limitations laws to “enterprise” notification. In other words, rather than requiring a patient to commence a lawsuit against every potential defendant, the law should toll the statute of limitations against all health care providers for injuries and damages arising from the events referred to in a complaint, save for one defendant who is initially sued. If later it is discovered that one or more others are also responsible, they can be brought into the case at that time.

[doc3osh]

Consider this: If Malpractice Attorneys are looking out for the best interests of patients and worried about protecting them against "bad medicine", why did so many of them flee Texas after Tort reform was passed there in 2003? Why did Malpractice lawsuits drop by half since then? Did bad medicine suddenly end in Texas in 2003?
We should all be as lucky as Texas-- apparently Tort reform cures bad medicine!

[Joanne Doroshow - Huffpost Blogger]

Clearly patient safety has suffered due to Texas tort reform. http://www.thepoptort.com/2009/08/hearst-report-texas.html One reason is that these laws have made it prohibitively expensive to bring cases. Medical malpractice cases are complex and expensive to bring - tens of thousands of dollars or more just to find out facts that are in the hospital's exclusive possession. Attorneys front these costs because injured people who may be in pain, unable to work, or lack funds to pay next month’s mortgage or rent, can hardly afford an hourly attorney’s fee. If they are not successful, the attorney receives no fee at all so taking a case is a huge financial risk. Inevitably, legitimate cases are not brought. When a patient's attorney takes a case and loses, he/she has essentially been unemployed for the entire time he/she’s been working on the case. Other professions, like doctors, do not operate with this kind of financial peril over their head. They are paid whether or not a patient gets better. (Maybe we should switch to a contingency fee system for doctors?)

[doc3osh]

You imply that Tort reform laws prevented Gourley's medical bills from being paid. This is untrue. Tort reform sets NO LIMIT on medical bills or lost wages. If the CEO of Exxon is injured due to malpractice and can't work, we're on the hook for his (massive) lost wages-- PLUS all medical bills. However Tort reform means that on top of that he cannot ALSO ask for millions for "pain and suffering"-- instead, "just" $500K in most cases. It is that potential pain-and-suffering "jackpot" award that gets lawyers drooling and forces us to order thousands of unnecessary tests.
One sad example: No surgeon in our hospital will operate on a woman for appendicitis without a CAT scan. Why? Because one woman had surgery for presumed appendicitis and it turned out that she did not require surgery. Her presentation and labs all pointed to appendicitis, but as sometimes happens, the surgeons were wrong. This is not malpractice-- they acted in her best interests and in accordance with what was standard of care. But she sued, so now ALL women undergo CAT scans-- radiation of their abdomen and pelvis-- prior to getting their appendix removed, no matter how obvious the presentation. This means they wait hours for their necessary surgery. Sometimes while waiting, their appendix ruptures and a simple surgery (minimal scar) becomes a large scar and 2-week hospital stay. It means increased risk of cancer from the unnecessary radiation. Tort reform is designed to protect us from this.

[Joanne Doroshow - Huffpost Blogger]

Unfortunately for the Gourley's, Frank Cornelius and others, "tort reform" can also set an absolute limit on all compensation, includes lost wages and medical expenses. That is the law in Nebraska, Indiana and some other states. Every state is different. What we don't need is another entire layer of national "tort reform" on top of these horrible state laws, as proposed by the Boehner bill. http://www.centerjd.org/archives/issues-facts/RHealthCareSub2009F.pdf

[pinball]

"You imply that Tort reform laws prevented Gourley's medical bills from being paid. This is untrue. Tort reform sets NO LIMIT on medical bills or lost wages. If the CEO of Exxon is injured due to malpractice and can't work, we're on the hook for his (massive) lost wages-- PLUS all medical bills...."

Well....you've inadvertently (I'm sure) hit upon the most unfair aspects of malpractice "tort reform".

First of all, you say there's no limit on medical bills or lost wages. Well, no. You realize your legal costs come out of your medical bills and wages award? In addition, whatever award you get is paid on a payment schedule and if you die (even if your death is caused by the malpractice) the payments stop--so even a caregiver who may have been forced to give up a career is now out of income. In addition, medical malpractice "reform" often eliminates the "collateral source rule" which allows your award to be offset by previously held insurance, social security, Medicare and other "free" government services.

In regard to the Exxon (or other rich person) receiving millions in lost wages--you're probably right. A baseball pitcher with a minutely incorrectly set finger could also collect millions. A housewife with no income is, well, out of luck. The rich can collect huge awards because of lost wages; the middle class and poor cannot.

[pinball]

"You imply that Tort reform laws prevented Gourley's medical bills from being paid. This is untrue. Tort reform sets NO LIMIT on medical bills or lost wages..."

Should add that Nebraska has a hard cap on all compensation, I believe it's 1 million. If the Gourley's bills and lost wages are more than that (and they are), they'll have to get it from welfare.

[MKMD]

When you don't have the argument on your side, then resort to some heartwrenching anecdotes to make your point. Here are a few arguments that might suggest that a revamp of the medical malpractice system is needed.

(1) The current system tortures the medical profession. I don't expect this point to carry much water with you.
(2) It wastes billions of dollars on defensive medicine, a point that the Congressional Budget Office has belatedly admitted. The dollar amount may be much higher as there is no way to accurately measure defensive medicine.
(3) They system enriches attorneys at the expense of the injured patients.
(4) Most victims of true negligence are entirely missed by the system and never compensated.

Does this sound like a system worth saving? No system is perfect, but anything would serve the greater good better than what we have now. See www.MDWhistleblower.blogspot.com for some balance on this issue.

[Joanne Doroshow - Huffpost Blogger]

Doctors are tortured? Visit some of these people if you want to see torture. http://centerjd.org/archives/press/2009/MedMalVictimStories09.pdf. There are hundreds of thousands of newly injured or killed patients each year due to preventable errors. The CBO's big admission was that less than half of one percent of health care costs are due to "defensive medicine". CBO also ignores the increased costs to taxpayers who must support families when insurance companies for culpable doctors, hospitals and HMOs are off the hook, let alone increased deaths and injuries that will result by enacting a brutal menu of "tort reform." http://centerjd.org/archives/issues-facts/CJDCBOCritiqueF2.pdf The May 2006 Harvard School of Public Health study found that the current system works: legitimate claims are being paid, non-legitimate claims are generally not being paid, and “portraits of a malpractice system that is stricken with frivolous litigation are overblown."

[pinball]

These "anecdotes" are real people whose lives were destroyed by someone's negligence, then were again victimized by an unfair justice system.

[quidam56]

Tort reform will never improve the quality of health care in America because the acceptable standards are at best abysmal. http://www.wisecountyissues.com/?p=62 I guess my experience with the system was and is frivilous as they say...