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THE MEDICAL MALPRACTICE CRISIS The Big Lie Special Interest Groups (and the Politicians They Control) Want the Public to BelieveSep 1, 2004 In our April 2003 Newsletter we focused on the increased efforts by conservative politicians to take up the cause of the medical and insurance lobbies to limit awards for pain and suffering in medical malpractice cases. These special interest groups have been arguing that malpractice insurance premiums have skyrocketed because personal injury awards for conscious pain and suffering have gotten too high. They also argue that the large awards are often attributable to “runaway” juries, and, as a result, the amounts awarded are not justified by the facts.
Certain politicians, including the current President, have found it fashionable to side with the physicians and the powerful (and affluent) medical and insurance lobbies and have sought to impose limits, or caps, on awards for conscious pain and suffering in medical malpractice cases. The easy targets for the doctors and politicians are the trial lawyers who are actually the only ones protecting the rights of injured people from what is unquestionably a “crisis” in medical malpractice. The crisis, however, is not in the size of the awards being given to injured people as the public is being asked to believe. Rather, the crisis is the virtual tidal wave of medical malpractice that is occurring every day in America.
Since our April 2003 Newsletter, and especially in light of the presidential campaign, the debate has intensified. This Newsletter examines the numerous outrageous fallacies in the tort law reform arguments and the extensive evidence being withheld from the public by those who seek to unfairly restrict the rights of people who are severely by medical malpractice. We will also take a closer look at the circumstances surrounding preventable medical injuries including the inadequacy of disciplinary penalties for doctors involved in questionable practice, the absence of a standard practice for reporting medical errors, and individual cases which emphasize the severe consequences of medical malpractice.
What is medical malpractice?
Medical malpractice is defined as a departure from good and accepted medical practice which results in injury. Proving such a “departure” to a jury, however, is a formidable task. Many cases which seem quite legitimate are thrown out by judges or rejected by juries due to lack of evidence on the issue of malpractice. Before a doctor can even be sued for malpractice, a qualified medical expert must review all facts and records relating to the case and render an opinion that there is a viable claim. Many cases fail to make it past this initial threshold and never even make it to court.
You will only succeed in a medical malpractice lawsuit if you are able to meet all of the following conditions:
* You are able to prove that the treatment rendered by the doctor or hospital fell below accepted standards. (Many times, what appears to be malpractice simply is not.)
* You are able to prove an actual injury.
* You are able to prove that the negligence (of omission or commission) caused you to suffer that injury and that you would not have otherwise suffered the injury. (Often, a medical malpractice case will fail because the plaintiff is unable to prove “causation.” Thus, doctor’s often concede their malpractice and then argue that it did not matter since the patient would have suffered the same “injury” anyway. For example: A doctor may concede that he was negligent in failing to diagnose the plaintiff’s cancer but claim that the patient would have died even if he had.)
* You must bring the claim within the time allotted by your state's statute of limitations for medical malpractice torts. This varies dramatically from state to state as well as between private and public medical facilities. In addition, many states have made the time in which to sue for medical malpractice significantly shorter than that allowed for other types of negligence. For more information, please visit: http://www.yourlawyer.com/topics/overview/statutes_of_limitations
It is often extremely difficult to find out if a particular physician has ever been involved in a previous malpractice incident. In some states such as Massachusetts, California, and Florida, doctors’ malpractice records are available on the internet. Washington, Idaho, and Oregon allow consumers to view malpractice information, but not via internet. Oftentimes, malpractice claims that are settled out of court or dismissed in court are not listed on a physician’s record. Unfortunately, until a uniform system is instituted in hospitals and other medical facilities nationwide, there will be no completely reliable way to access a physician’s entire professional history. This is especially so if the physician in question has been employed at several different hospitals or has relocated frequently. Such unusual activity may be an indication that a doctor has a questionable past.
Medical malpractice is a serious threat to patient safety.
In 1999, the Institute of Medicine, a private non-profit institution, published a report entitled “To Err Is Human,” which revealed that between 44,000 and 98,000 people, who are hospitalized in America, die each year from medical errors. Medical error can be defined as “the failure of a planned action to be completed as intended or the use of a wrong plan to achieve an aim…including problems in practice, products, procedures, and systems.” The fact is, however, no one really knows for sure how many medical errors result in death as they are often not properly reported or not reported at all.
In addition, statistics on medical errors are usually based on hospital admission data, completely ignoring medical errors which take place in a doctor’s office, nursing homes, or other smaller medical facilities. While there is no way to completely eliminate fatal medical errors, there are certainly ways to prevent the vast majority of them. One such way is to impose a system whereby doctors, and the facilities they work in, are checked regularly to ensure that they are continuing to provide the best care possible.
Death, however, is not the only outcome of medical error that patients need to be concerned about. Many mistakes by medical professionals leave patients with serious, or even catastrophic, injuries with dire consequences for the persons involved and their families. Irreparable, but all-to-common, mistakes include amputating the wrong limb, causing permanent brain damage to a newborn baby, and failing to diagnose serious illnesses such as cancer.
According to a survey conducted by the National Patient Safety Foundation, 42% of people believed that they had personally experienced a medical error of some kind. Medical malpractice produces a much higher percentage of more severe injuries for several reasons. First of all, the patient is usually in weakened condition to begin with so even a slight error, which would perhaps go unnoticed when treating a healthy individual, can cause them permanent injury, illness, or even death. Second, medical malpractice cases involve people who are often not in a proper state of mind to debate the specifics of the treatment that they are given. Even in sound state of mind, however, patients are likely to defer judgment to their physician due to the trust most people have in this kind of trained professional.
Medical errors are prevalent throughout the world and can affect those with insurance and those without. It can affect anyone from a newborn infant to a teenager to an elderly individual no matter where you are. It affects the rich and famous as well as the indigent. (As our readers may recall, the renowned artist Andy Warhol died as the result of medical malpractice at New York Hospital in 1987. His estate was paid several million dollars to settle the malpractice claim shortly before the case went to trial.)
While hospitals are capable of being ranked in terms of the quality of care they provide and are subject to inspection, investigation, and may be penalized by various government agencies in most states, physicians who make mistakes usually escape any such scrutiny. They are rarely disciplined, suspended, or barred from practicing medicine as a result of their malpractice. They often keep their privileges at the very hospitals in which they committed their malpractice. Many times their malpractice goes unreported even though their superiors are aware of it and even though it has happened on numerous occasions. This is especially so when the doctor involved is the chief of a department or an established specialist.
Another fact that is simply ignored by those who wish to protect the medical profession from its own high degree of negligence is the compelling evidence that medical malpractice has reached epidemic proportions. In Utah, for example, state officials found that in a five-year-period, 90,000 mistakes were made in treating hospital patients. In Pennsylvania, one in ten doctors has lost or settled a malpractice lawsuit. In Canada, a recent study revealed that 24,000 patients die in the hospital every year and tens of thousands are crippled, injured, or poisoned due to preventable medical errors. In addition, Canadian hospitals have a higher death rate on weekends which has been attributed to lower levels of staffing. Most experts, however, see these statistics as little more than the tip of the iceberg.
According to a 2002 study conducted by the Harvard University School of Public Health along with the Kaiser Family Foundation, four out of every 10 Americans and one out of every three doctors said that they or their family members have been victims of a preventable medical error. In addition, almost 30% of doctors claimed that they had witnessed a serious error in the course of their work in the past year.
Research on the issue began at Harvard University in the 1990s after the high-profile case involving the death of Boston Globe reporter Betsy Lehman from a chemotherapy overdose. Massachusetts is known for having one of the best systems in terms of requirements for reporting medical errors.
In July of 2004, HealthGrades, a Denver-based health care ranking group, published a study based on a national review of Medicare records. By using a comprehensive list of Patient Safety Indicators (PSI) including accidental puncture or laceration, failure to rescue, and selected infections due to medical care, HealthGrades sought to discover a more realistic figure regarding the number of deaths (and injuries) attributable to medical error. The results of this study were nothing short of shocking:
* The 18 PSIs used by HealthGrades contributed to $9.3 billion in excess charges and 32,591 deaths in the United States annually.
* Approximately 1.14 million patient safety incidents occurred among the 37 million hospitalizations of Medicare recipients from 2000 to 2002.
* PSIs were more prevalent among medical admissions compared to surgical admissions.
* Of the 323,993 deaths among patients who experienced one or more PSI from 2000 to 2002, 81% of those deaths were directly attributable to the PSI.
The HealthGrades study projected that between 2000 and 2002 there were 195,000 deaths annually, a far cry from the 98,000 estimate given in the IOM report. More studies like the HealthGrades study would help generate a more accurate figure for the annual number of deaths and injuries nationwide that are attributable to medical errors and malpractice. For a complete report of the HealthGrades study visit www.healthgrades.com.
Medical malpractice litigation is at a critical stage.
The law relating to medical malpractice in the United States is under attack and in danger of being significantly restricted by those who do not have the public’s best interests in mind. Pressure from the powerful and extremely well-funded medical, pharmaceutical, and insurance lobbies has conservative lawmakers pushing hard for tort reform including placing limits, or caps, on the amount that a plaintiff can receive for conscious pain and suffering, the most important element of damages in most medical malpractice actions. There has also been a clear trend toward protecting HMOs, medical device manufacturers, and pharmaceutical companies from being sued under any circumstances and regardless of their negligence.
The Bush administration and its conservative supporters in Congress (who are closely aligned with the interests of the medical, pharmaceutical, and insurance lobbies) have chosen to attack trial lawyers and blame them for the problem of high medical costs and skyrocketing malpractice insurance premiums. In March of 2003 a bill was approved which would cap awards for pain and suffering at $250,000; a limitation similar to that already found in California and Idaho. Although the President claims that “trial lawyers,” “frivolous” lawsuits, and “runaway” juries are the cause of the increase in medical malpractice premiums and the number of lawsuits, the evidence is that no such connection exists.
Rather, it is the significant increase in the amount and severity of the malpractice itself which is at the root of the so-called “crisis.” The Democrats have opposed this bill as they believe it protects insurance companies and negligent doctors at the expense of innocent and badly injured victims.
The Bush administration has also taken a stand to block lawsuits by consumers who claim to have been injured by prescription drugs and medical devices saying that they should not be able to recover damages for injuries caused by products that have been approved by the FDA. (This represents a reversal of the administration’s previous policy). The administration contends that suing the manufacturers would only serve to undermine public health (by stifling research and development) and interfere with federal regulation of drugs and devices while forcing manufacturers to withdraw products from the market thereby leading to “underutilization.”
Of course, this entire “spin” on the problem ignores the enormous number of drugs which have had to be withdrawn from the market over the past several years after they have been found to have maimed and killed thousands of trusting consumers. Inadequate testing, incomplete reporting of adverse reactions, premature FDA approval, highly questionable direct-to-consumer advertising campaigns, and potentially unethical relationships between doctors and the pharmaceutical companies have been responsible for these catastrophic results. The fact that trial lawyers have successfully prosecuted individual and class actions with respect to scores of dangerous drugs and medical devices only serves to prove that the problem is with the drugs and devices and not the lawyers.
Siding with the pharmaceutical and medical device manufacturers, insurance companies, and the medical lobby has placed this administration squarely on the side of big business, special interests, and the economically powerful. The health and wellbeing of the public is simply not being protected (or even being considered) by such blatant anti-consumer policies on the part of the Bush administration and similar conservative political groups in various states. We strongly believe that it is time to question why certain elements within Congress and various state legislatures are pushing so hard to implement tort-reforms which are clearly not in the public’s best interests instead of preparing a national plan to improve patient and consumer safety while preserving every citizen’s right to free access to the courts when he or she is injured by the malpractice of a doctor or hospital or by a dangerous drug or defective medical device.
The unjustified limitations being placed on medical malpractice litigation have caused additional problems for people who have legitimate claims. It is becoming even more difficult to obtain an attorney to represent a victim of malpractice since many attorneys are unable to afford the high cost of litigating such cases. Even if an attorney has adequate resources, the average cost of a malpractice case, which can range anywhere from $25,000 to $50,000 or more, prevents attorneys from even accepting otherwise good cases simply because of their limited value. No other type of personal injury litigation is so unduly undermined by arbitrary restrictions placed on the injured party.
Doctors, who, as a result of being fully insured, are almost never exposed to any personal financial liability as a result of their malpractice, are claiming that the insurance which allows them to escape such liability costs too much. In some locations, doctors have even gone on strike, claming that they cannot afford to pay the rising premiums which are meant to protect them as individuals from dealing with potentially expensive and career-ending lawsuits for malpractice. (It must also be remembered that premium increases are based on the fact that money has had to be paid out for valid malpractice settlements and judgments and not because of any misdeeds on the part of a trial lawyer. Imagine if you had several serious automobile accidents and then attempted to convince your insurance company not to raise your premiums by arguing that the lawyers who represented the people you injured were really the ones at fault. The concept is laughable, yet that is precisely what the medical and insurance lobbies have been able to “sell” to the elected officials who are supposed to be protecting your interests.)
In addition, many of the most serious medical malpractice cases are settled by confidential agreements which allow the doctor (or hospital) and the insurance company to prevent the public from learning about either the settlement or the negligent conduct that led to it. Again, such settlements are voluntarily entered into because there was actionable malpractice which resulted in a serious injury or death and not because a trial lawyer did anything improper or took advantage of an innocent doctor or hospital.
These “secret” settlements are forced on injured plaintiffs by the doctors and insurance companies. Obviously, an attorney would like to publicize his victory and the injured party would like to let others know about the doctor or hospital involved. The insurance company and doctor or hospital involved, however, have very selfish reasons for demanding confidentiality.
First, it prevents an accurate account of how many successful medical malpractice claims are being made. Second, it prevents some of the largest settlements from becoming public knowledge. (This makes it much easier for the medical lobby to justify its claim that malpractice premiums are too high. Imagine if you could keep driving your car into pedestrians, have all of the claims against you paid by way of confidential settlements so that no one knew about them, and then complain to everyone that your insurance premiums are too high. Sounds crazy, but that is exactly what the medical lobby is doing.)
Finally, these confidential settlements never become part of the national or state-wide statistics relating to medical errors and settlement amounts. Doctor’s and hospitals unquestionably enjoy far greater insurance protection than most other industries as individuals and the premiums reflect this heightened protection. In addition, the injuries caused by medical malpractice are usually far more serious than those suffered in typical negligence cases. Thus, the premiums must be proportionately higher. For doctors to argue that their premiums are too high is like the owners of the Empire State Building claiming that they should pay the same fire insurance premium as the owner of your corner newsstand.
The element of damages designed to place a value on an injured party's past and future pain and suffering (physical and emotional), and the "loss of enjoyment of life" he or she has suffered is the only award that attempts to restore a victim's life to some degree of normalcy. In almost every case, however, money will never be an acceptable substitute for what the victim has lost or for the enormous suffering the victim has suffered and will continue to suffer. To “cap” this element of damages does every person injured by medical malpractice a grave injustice.
Why should someone paralyzed by the negligence of a doctor receive less compensation than someone paralyzed in an automobile accident? Is a leg amputated by a doctor’s mistake any less of a catastrophe than a leg amputated by a defective chain saw? Of course not! Each case should be fairly decided on the basis of the injury and the impact it has on the plaintiff’s life. No case should be “discounted” simply because the person causing the injury is a doctor. Such a distinction is unconscionable.
Bad doctors and bad reporting make for bad medicine.
In January of 2003, the National Practitioner Data Bank (NPDB) reported that just 5% of U.S. doctors are responsible for 54% of all malpractice. Yet even after a doctor has been found liable for malpractice, there is no guarantee that he or she will be penalized in any way with respect to practicing medicine. In fact, only a small percentage of the worst doctors have their licenses suspended and even fewer have their licenses revoked. The rest are either shifted around (similar to the way in which priests who were known to have abused children were simply transferred to other parishes) or move to another community in the same or another state. In any event, such “problem” doctors have no difficulty in continuing to practice medicine. Doctors have even been known to move to other countries in order to continue practicing medicine when their ability to do so in the United States has been compromised as a result of extremely serious infractions.
It is well known in the medical profession itself that doctors are not always inclined to report their errors, or those of their colleagues, for a number of reasons. These include: (a) the desire to escape punishment; (b) the unwillingness to admit their negligence; (c) the belief that protecting a colleague will somehow ensure the same degree of loyalty from that person when and if the tables are turned; (d) fear of retribution from one or more superiors; (e) a reluctance to bring one’s hospital into disrepute; and (f) sheer arrogance.
This routine lack of accountability for medical errors is the main reason why they remain so prevalent and continue to be a threat throughout this country and the world. In 2001, the Joint Commission on Accreditation of Healthcare Organizations announced certain standards for medical practice in hospitals in the United States including working actively to prevent medical errors, designing patient safety systems, and encouraging and acting on internal reports of errors. Unfortunately, creating a standard and actually having doctors follow it are two entirely different matters.
In the last decade, 84% of Health Maintenance Organizations (HMOs) and 60% of hospitals failed to report medical errors to the government, allowing many health care professionals to literally get away with murder. Such disregard of reporting requirements is as close to having a “license to kill” as you can come without being James Bond. (Consider the ongoing case of Charles Cullen, a registered nurse who may have killed as many as 40 patients at 10 hospitals in New Jersey and Pennsylvania over the course of 16 years. Although Mr. Cullen was investigated on a number of occasions with respect to misusing potentially lethal drugs and was fired or allowed to resign from a number of hospitals, he was permitted to “hopscotch” from hospital to hospital without the slightest difficulty.)
Although the penalty for failing to report errors may include the removal of legal protections from the government, this penalty is rarely imposed. While information on incompetent doctors is supposed to be listed in the NPDB, oftentimes reportable incidents fail to make it any further than the hospital they occurred at. The doctors involved are simply given a slap on the wrist and then permitted to return to their duties. A new debate has arisen as to whether the information on the NPDB should be available to the public. Of course doctors are strongly opposed to such an idea, claiming that once a malpractice claim is filed, their record will be tainted even if that claim is unsuccessful.
In New York, the Department of Health (DOH) has been criticized for failing to revoke medical licenses in appropriate situations. One cause of this, however, may be the fact that New York City hospitals have been repeatedly cited as being the worst in the state for reporting medical errors, even those resulting in death, to the DOH. In 2001, the state Commissioner of Health, Dr. Antonia C. Novello, stated: “People are not unemployable just because they have made a mistake, but when you break the trust of the public good, I don’t think you should be able to practice.” Yet doctors who have made mistake after mistake are still practicing and still making preventable medical errors. In fact, more than 75% of doctors who were disciplined in the past 8 years began working again after they were punished by the state.
What is missing here is a clear and concise plan explaining how hospitals should handle problematic doctors and preventable medical errors. Also missing is a uniform system which provides information on previously disciplined medical professionals so that subsequent employers are aware of their past record. Such a system would have saved many patients from being killed by Charles Cullen in New Jersey and Pennsylvania between 1987 and 2003.
As is often the case, money is also part of the problem. Simply stated, no medical facility wants to get rid of a good earner and, as luck would have it, doctors with disciplinary problems are often among the top third of moneymakers at their given hospitals. Doctors who are consistent and plentiful income producers are often praised for their ability to provide a constant patient stream to the hospital while actually avoiding punishment for any questionable practices resulting in preventable medical errors.
In this regard, consider the chilling situation that occurred at Redding Medical Center in California. One particular cardiologist was single-handedly responsible for making his small, rural hospital one of the most lucrative business enterprises for its owner, Tenet Healthcare. Unfortnately, the doctor was only able to do this by intentionally making false diagnoses of heart-related problems in order to justify performing hundreds, if not thousands, of unnecessary procedures and surgeries.
While other staff members were suspicious of the goings on at the hospital, their concerns were dismissed by their superiors until the scheme was exposed by one patient, a 55-year-old reverend, who sought a second opinion after he was told he needed emergency triple bypass surgery. A highly qualified cardiologist was shocked by the diagnosis and told the patient that his heart was in perfect shape. Federal agents raided the hospital and Tenet was eventually forced to pay $54 million in penalties for the unnecessary heart procedures. This, however, does not change the fact that this single doctor was a staple at the Redding Medical Center for almost two decades and was being protected by his superiors who were only concerned with the enormous annual revenue he produced and not the quality or legitimacy of his practice.
Are malpractice awards and insurance premiums too high? You be the judge.
Awards for conscious pain and suffering represent compensation for what was taken away from the victims in terms of their ability to enjoy their lives and for the ensuing nightmare that is a direct result of a medical error. Is a maximum award of $250,000 really sufficient? In many cases, that sum is pitifully inadequate. What if a child is brain damaged at birth and, as a result, has his or her entire life snatched away. No childhood experiences, no joy of growing up, no teenage romances, no college memories, no first job, no wedding day, no family of his or her own, no golden years, and no human dignity. Can $250,000 replace all of that? Is that sum enough to compensate a 17-year-old girl for everything she will no longer be able to do if a medical mistake paralyzes her below the waist?
Consider the following actual malpractice cases and then ask yourself if $250,000 would be adequate compensation for the conscious pain and suffering involved and for the loss of enjoyment of life these people have suffered and will continue to suffer for the rest of their lives.
* Jesica Santillan was a 17 year-old girl from Mexico who was smuggled into the United States to receive treatment for a life-threatening heart condition. She waited three years for a donor heart and lungs to be found. When the heart and lung transplant, which was supposed to save her life, was finally performed, her condition only worsened. It was then discovered that the heart and lungs she received did not match her blood type. Jesica required a second transplant operation two weeks later but the damage to her brain and other organs was irreparable. Jesica experienced brain damage and kidney failure, was ultimately declared brain dead, and removed from a respirator. After this tragedy, Duke University Hospital, which admitted it had made an inexcusable medical mistake in cross-checking blood types, initiated a three-person verification system to ensure that the blood type of the donor and recipient match. This error, however, wasted two donor hearts and four donor lungs, caused a young girl to lose her one chance at a normal life, inflicted two weeks of unimaginable pain and suffering on the child including the need for a second transplant operation, and it killed her. .
* A 67-year-old man named Hurshell Ralls went into surgery for bladder cancer and, while under anesthesia, the surgeon removed his penis and testicles because he concluded that the cancer had spread to the penis. No one had ever discussed the possibility of such radical additional surgery with Mr. Ralls who was shocked to learn what had happened to him at a time when he was unable to make a conscious decision about the removal of his penis and testicles. Later, after examining a tissue sample, another doctor concluded that Ralls never had cancer of the penis.
* In May of 2002, Linda McDougal was diagnosed with breast cancer and underwent a double mastectomy at the United Hospital of St. Paul Minnesota. After the surgery, McDougal was told that she had never had cancer. Apparently, her slides had been mixed up with those of another patient.
* A woman taking Prempro, a HRT drug mentioned in our May Newsletter for its serious adverse effects, began experiencing severe migraine headaches. She went to a hospital emergency room where the doctor on call prescribed a migraine medication called Midrin as well as a blood pressure medication when he noticed her’s was elevated. A few days later she experienced a minor hypertensive stroke and went back to the hospital but was released without any new diagnoses. Finally, after two more hypertensive strokes, a CT scan revealed that the woman was bleeding in one area of her brain due to the fact that both Prempro and Midrin had elevated her blood pressure to dangerous levels and no one had caught this prescription error.
* A perfectly healthy newborn baby was placed in a defective incubator which was cold and which caused the child to suffer permanent brain damage. Another healthy newborn suffered brain damage when a doctor allowed the baby to slip from his hands and land on its head.
* A woman was undergoing gynecological surgery when she awoke in the middle of the operation. She was in terrible pain and had to be restrained until additional anesthesia was administered to her. As a result she suffered a severe back injury. It was later discovered that her anesthesiologist was a drug addict who had been stealing and then using doses of anesthesia intended for his patients. As a result, those patients were under-anesthetized during surgery.
The real truth about medical malpractice trials and settlements.
Despite the hysterical claims of politicians and lobbyists to the contrary, doctors are not the victims of blood-thirsty trial lawyers, runaway juries, or unfair verdicts and settlements. They are actually being called to answer for their own acts of malpractice. They are certainly not being sued for every little mistake they make. Most malpractice cases are turned away by attorneys. This is because there is no malpractice, no injury, or no connection between any malpractice and the alleged injury. Other cases are rejected simply because they are too small. Many are rejected because they are beyond the statute of limitations. The vast majority of people who are victims of medical errors, however, simply do not sue. Significantly, most of the cases that are not settled and actually go to trial result in verdicts for defendants. Thus, out of court settlements, which are voluntarily entered into by the insurance companies, doctors, and hospitals, are actually more responsible for an increase in the cost of malpractice insurance than are jury verdicts.
Moreover, when a truly excessive verdict is awarded, it is never actually paid. The law is full of protective measures which prevent defendants from excessively large damage awards. So, while the media is quick to report on extremely large verdicts, it almost never follows up on the subsequent events surrounding the case which often include a substantial reduction of the award by the trial judge or by an appellate court, new trials, or outright dismissals by the courts because of a failure of proof.
Runaway juries are also not the problem. In fact, juries often award a plaintiff less money than what insurers and doctors are offering in settlements. In 2000, the NPDB revealed that the median payment for a victim was only $125,000 and not the $1 million median which was reported by Jury Verdict Research, which is a private source. Even verdicts which start out higher than the proposed cap of $250,000 are reduced to a median of $235,000 when the case is finally concluded.
We also ask our readers to consider the following facts. How is it the trial lawyer’s fault if a court reviews a verdict and reduces it to an amount it then approves? The lawyer has no control over this and the amount is one set by the court. How is it the trial lawyer’s fault if the doctor or hospital and the insurance carrier involved in a case voluntarily offer the plaintiff the very amount of money a case is settled for? Are they paying a plaintiff for malpractice that never really happened? No one could believe that. Does anyone really believe that insurance premiums are based on what trial lawyers obtain for their clients by way of settlements or judgments? Is it not more likely that insurance premiums are based on the damages caused by the policy holders who commit the actual malpractice? Of course it is.
We also ask our readers to consider that the legislatures of many states have already made other significant concessions to the medical lobby over the years including:
* Passing shorter statutes of limitations specifically for malpractice cases. This reduces the time in which injured parties may bring their cases. No other class of defendants has been given such favored treatment.
* Requiring a certification by a medical expert before a plaintiff is even able to commence a law suit for medical malpractice. No other type of litigation requires this.
* Substantially reducing attorneys’ fees in medical malpractice cases only.
* Requiring plaintiffs to offer expert proof establishing the viability of their case before going to trial in order to avoid a dismissal of their claim.
* Requiring a plaintiff’s case to be dismissed at trial regardless of how much evidence of malpractice there is unless the plaintiff’s case is also supported by expert medical proof.
As the November election approaches, it is time for American’s to consider who is really behind the push for tort reform. Ask yourself why any politician would favor the position of a few well-funded special interests over the rights of the very people who voted him or her into office. Consider the evidence which shows the medical, pharmaceutical, and insurance lobbies are asking Americans to believe something that is simply not true and making it appear as if there is a crisis when, in fact, no such crisis exists.
While there are many other issues to think about in this election, imposing a cap on conscious pain and suffering and otherwise restricting an injured person’s right to sue those who have caused his or her injuries would be giving away a fundamental right which is necessary to ensure the protection of everyone in our society. It would also be allowing pharmaceutical companies, medical device manufacturers, insurance companies, and doctors and hospitals to avoid any accountability for their negligence and malpractice.
Please do not hesitate to contact Parker & Waichman if you believe you or a loved one has suffered an injury as a result of medical malpractice, or from using a defective medical device, or from taking any pharmaceutical product. As always, we welcome feedback from our subscribers regarding our Newsletter.