LeftOut

by Daryl Moore

BAD MEDICINE

Tort reform will not resolve an alleged malpractice lawsuit crisis

Doctors across the country are whining about malpractice insurance rates. They have staged walkouts in New Jersey and have threatened to quit practicing in certain areas unless they get a break on their rates. They blame trial lawyers and frivolous lawsuits for increased rates. They claim that the only way to bring rates back under control is to pass more tort reform and to cap damages in malpractice cases.

Republicans have taken up the doctors’ cause and are pushing for caps across the nation. That’s no surprise, given that the majority of political contributions from trial lawyers have gone disproportionately to Democrats. Payback time is hell, and now there’s going to be hell to pay for trial lawyers who are struggling to stop tort reform and damage caps on the national and state level.

Nationally, Republicans have introduced a bill that would cap non-economic damages at $250,000 in medical malpractice, product liability, and nursing-home negligence cases. In Texas, Governor Perry has declared malpractice insurance an emergency issue and is pushing a cap of $250,000 on pain-and-suffering damages in all malpractice cases.

Before everyone jumps at the chance to punish trial lawyers for rising insurance rates, they should take a look at the effect of the proposed legislation and whether it will accomplish its alleged objective—decreased insurance rates for doctors.

The effect of the legislation is profound. If passed, injured individuals will be limited to recover $250,000 for their non-economic, or “pain and suffering” damages. They will still be able to recover all of their economic damages, e.g., future medical expenses and lost wages. What does that mean?

Let’s take the recent case of Jessica Santillan. She was the 17-year old girl who died after undergoing a botched heart-lung transplant at Duke University Medical Center when the hospital made the simplest and most egregious of mistakes—not ensuring that her blood type matched the blood type of the donor. In Jessica’s case, her parents would receive $250,000 under the proposed caps. That’s because Jessica doesn’t have any future medical expenses, since she died. And she doesn’t have any lost wages because she was a minor who didn’t work. So, Jessica’s life is worth $250,000. Period.

Or let’s take the case of Linda McDougal, who underwent a double mastectomy after she was diagnosed with an aggressive form of breast cancer in May 2002. McDougal, a 46-year-old mother of three, decided to have both breasts cut off after her doctor told her that unless she did so and had chemo and radiotherapy, she would probably die. After McDougal had both breasts removed, the hospital told her there had been a mistake and that her breasts were both normal and cancer free. She didn’t need any surgery after all. An insurance company is paying McDougal’s lost wages and medical expenses, so under the proposed legislation, she would be able to recover $250,000 for losing both of her breasts because of a senseless mistake by a medical lab.

A legislature’s decision that McDougal’s being maimed for life is worth only $250,000 is offensive. But capping Jessica’s parents’ recovery at $250,000 for the life of their 17-year-old daughter is outrageous, especially when you consider that Vice President Dick Cheney—who supports the legislation—made $36 million in his last year as CEO of Halliburton.

In addition to the outrageous effect of the proposed caps, the argument that they will result in cheaper insurance rates for doctors is a sham. In California, which has some of the most restrictive damage caps in the country, malpractice premiums rose 37 percent compared to a nationwide average of less than 6 percent. In short, there is simply no evidence that capping recoveries or the rights of patients will decrease premiums.

More importantly, if legislators want to reduce the numbers of malpractice cases, they should encourage doctors to quit committing so much malpractice, not punish the injured. A recent national study found that almost 100,000 people die each year as a result of medical errors. More than 1.2 million “adverse events” in which patients are injured occur each year, half of which are due to preventable medical errors.

If doctors want cheaper malpractice rates, they should regulate themselves better. They should put teeth in their peer-review process and revoke the licenses of the incompetent practitioners whose repeated negligence results in the majority of malpractice suits.

Capping damages for catastrophic injuries will not solve any problems. It will only reward bad doctors and negligent hospitals for behavior that causes catastrophic injuries and death. The Republicans’ proposed tort-reform is just bad medicine.

Writing from the liberal end of the spectrum, Houston attorney Daryl Moore has a general practice and is board certified in civil and appellate law. He can be reached at DarylMoore@outsmartmagazine.com.

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