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Joanne Doroshow Headshot

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

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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.