Medical Malpractice Patients Are Forgotten Victims Of Tort Reform

04/07/2017 02:36 pm ET Updated Apr 16, 2017

Harold had a spinal fusion that went very wrong.

Photo credit: Mic445 via Visualhunt / CC BY

His surgeon accidentally hit a nerve cluster in his thoracic spine and left him in irreversible, intractable agony. Harold was left unable to stand, sit or move without pain, and his sister needed to move from another state to assist him with daily tasks. He was declared disabled by his doctor after six months – a shadow of his former self.

Harold is a fictional character who will help us paint the picture of what could happen to others in a similar situation. Like them, he was advised that he should file a medical malpractice claim to help cover the crushing medical bills.

But how much he (and others like him) can rely on this avenue to recover damages may be about to change.

The Trump Administration is trying to unite Republicans on a new version of “TrumpCare,” as it’s become known. Now they are discussing rolling back mandates meant to protect those with pre-existing conditions in order to push the bill through (which goes counter to the president’s promises during the campaign season). Additionally, the House Judiciary Committee recently approved legislation that would cap damages paid by doctors, hospitals, and nursing homes.

But what about the rights of medical malpractice victims? What about tort reform?

How is this going to impact people like Harold?

To be clear, this is not a discussion about the replacement itself. This article focuses solely on a theoretical replacement that includes proposed tort reforms – damage caps on settlement recovery and independent medical review boards – and how they would hypothetically affect a medical malpractice patient.

Tort reform in general

Republicans have said for quite some time that there is a looming health crisis in the United States in which billions of dollars will be spent on lawsuits and the “practice of defensive medicine,” as Representative Tom Price, the United States Secretary of Health and Human Services, stated at a news conference in June 2016.

However, experts claim that the law is going too far in protecting doctors while not protecting patients’ welfare. Medical errors rank third in the nation for cause of death after cancer and heart disease, claiming a quarter of a million lives annually. Meanwhile, the last insurance crisis for medical malpractice insurers dates back more than a decade and prices are at the lowest they have been in years.

Part of the recurring discussion around tort reform has focused on damage caps for medical malpractice jury awards and the creation of independent panels to review the merits of cases.

“Tort reform [measures] would cap the damages in medical malpractice suits that injured people are allowed to recover,” said John Risvold, a personal injury attorney at the Collins Law Firm in Naperville, Illinois. “This would mean that a child with cerebral palsy caused by a negligent doctor or nurse during birth who needs a lifetime of care will have his recovery capped. This forces people to have to pay out of pocket for the negligence of others.”

The establishment of independent medical review panels would assert adherence to a framework of guidelines for medical professionals. While some believe this would take the process away from the courts and give doctors too much power, this does provide a somewhat neutral, systematic process. These panels would review what doctors did and make sure that they kept to the program.

Mack Babcock, a personal injury attorney in Denver, Colorado, asserts that this would be protecting the doctor instead of the patient. “Doctors, insurance companies, pharmaceutical companies, corporate America... They’re scared of everyday Americans deciding these cases. Jury trials are guaranteed in our constitution for a reason – they are the purest form of democracy,” he said.

“Take a dispute before six to 12 everyday Americans and have them decide the fate of the parties. People gripe a lot about corruption in Washington and the money in politics. There is none of that in jury trials – no lobbying, no campaign contributions, no shady behind-the-scenes deals. That’s what the folks with the money don’t like. They don’t like it when they can’t pay for an outcome.”

As the new director of Health and Human Services for the Trump Administration, Tom Price wants to establish these independent review panels – or administrative tribunals – so that the court system becomes less clogged with personal injury cases. These would actually be in lieu of jury trials, not in addition to them or as an alternative choice.

“In my opinion, tort reform would destroy the lives of those victims whose lives are already turned upside-down from an accident that was not their fault,” said Jason Turchin, a personal injury attorney in the Fort Lauderdale area. “Victims of accidents and malpractice are already limited in ways to recover, and further limiting could take more rights away from victims. … Punitive damage caps have already been addressed in many states, and I don’t see a need for the federal government to further limit the rights of victims. It is not fair for someone who was hurt or killed because of someone’s negligence to then be limited in what they can get. Why should they suffer even more than they already are?”

What does that suffering look like for a normal individual who has filed a medical malpractice case in the post-replacement world?

A post-replacement simulation

Let’s look at what happens next in our simulation with the fictional Harold.

As a resident of California, he noticed that it was difficult to find an attorney who wanted to take his case. One of them explained to him that this was because California has damage caps in place – these existed before the ObamaCare replacement was enacted, but with the new tort reform regulations in effect, there are even more hoops through which to jump, and it’s just not worth it for attorneys to take the case. California caps non-economic damages (e.g., pain and suffering, emotional distress) at $250,000. Other states have different caps – Florida has a $500,000 cap for certain cases, and Texas has a $750,000 cap for personal injury cases. Some states didn’t have caps at all before tort reform was enacted (in this simulation). Many attorneys don’t even bother explaining the math and send a standard rejection letter to clients seeking medical malpractice representation.

Medical malpractice claims are expensive to prove and require many medical experts, all of whom have hefty fees, and attorneys work on contingency. One lawyer finally broke down the numbers for him, and Harold realized – with a sinking feeling – that he was not going to get anywhere close to enough money to cover his bills, much less support him going forward in life.

After Harold finally found an attorney willing to represent him, he was told that he would be heard before an independent medical tribunal. When he asked why he would not be able to face the surgeon in court, his lawyer said that these review boards existed to relieve the legal system of personal injury cases. The tribunals ensured that medical professionals adhered to professional standards and clinical practice guidelines with which laypeople would be unfamiliar. These were also not juries that would be sympathetic to a claimant and dole out millions of dollars to punish a doctor for malfeasance.

This left Harold with very little money to live on, no day in court and no other avenue he could take for compensation. He was relegated to the disability system, and his sister moved in permanently to become his full-time caretaker.

What does this mean for personal injury cases as a whole?

Given that these tort reform measures have yet to occur, this conversation is still theoretical at best. It is likely that catastrophic injury cases will become much harder to prove and more difficult to compensate if these restrictions are put in place.

The Republicans control both the House and the Senate, and Speaker Ryan and Rep. Price have moved quickly. The Trump Administration is having intense meetings in an attempt to pass some version of the health care bill. It is only a matter of time before this theoretical conversation becomes reality. Should these measures be implemented, plaintiffs will be reduced to facing sterile medical review boards and hit damage caps when their bills have already gone beyond that threshold. Catastrophic injury patients must be able to get the compensation they deserve, if only to provide the lifelong care that they so desperately need.

Call your state representatives and tell them that medical malpractice patients deserve their day in court.

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