Are Medical Malpractice Lawsuits Frivolous?
These days we hear a constant refrain from media pundits and politicians that there can be no meaningful health care reform without tort reform. They maintain that the way to save real health care dollars in the process of revamping the health care delivery system is to include provisions in the legislation that would put an end to “frivolous” lawsuits. The argument is that “frivolous” law suits drive up the cost of health care by causing doctors and hospitals to charge more for the care they deliver and these costs get passed on to the consumer in the form of higher insurance premiums and medical bills. For the most part, this argument goes unchallenged. Because there is little media or public debate over the issue, it is largely accepted as true that nearly all medical malpractice lawsuits are frivolous and should be markedly curtailed. But who would be the real losers and winners if patients lost the right to sue for medical negligence?
The term “frivolous lawsuit” refers to a silly or trivial case with no sound basis in fact or law. Put it another way, it is a case that is a waste of the litigants time and money. The most common example voiced by prospective jurors when the inevitable issue of “too many lawsuits” or “frivolous lawsuits” comes up during jury selection is the McDonald’s case. Advocates of tort reform have made a convincing argument, believed by most people that the case was simply silly and did not belong in the court system. The real facts are virtually unknown. In at least one case of which I am aware, the judge interrupted voir dire to accurately explain the facts to prospective jurors. He explained that the 79 year old plaintiff sustained third degree burns to her genital area when she spilled scalding hot coffee purchased at McDonald’s. McDonald’s ordered it franchisees to sell their coffee at 190 degrees F (water boils at 212 degrees) and refused to change their policy even though they had settled over 700 coffee burn claims. The plaintiff was hospitalized for 7 days and underwent surgical skin grafting. McDonalds offered her $800 to settle her claim. The jury awarded her $160,000 in damages and punitive damages equal to two days profits earned by McDonald on its coffee sales. Because of the media barrage surrounding frivolous suits, the uninformed continue to equate medical malpractice lawsuits to the McDonalds case.
Yet when most people have the opportunity to hear the facts surrounding medical malpractice lawsuits, they find it hard to label them as “silly”. Examples of cases I have handled in recent years include the case of a 65 year old woman who suffered from rheumatoid arthritis. She was experiencing severe pain in her neck and went to an emergency room operated by a well known HMO. It turned out that the bones in her neck had grown together due to her disease and she could not bend her neck. She reported this information to the emergency room physician who examined her and found her neurological system to be normal. After examining her, the ER physician negligently overdosed her with excessive amounts of pain medication and she went into cardiac arrest. He broke her neck, paralyzing her from the neck down, when he attempted to put a breathing tube in her airway during resuscitation. She will spend the remainder of her Golden Years in a wheelchair. One could hardly call the case frivolous.
In another case, a young Asian woman was allowed to labor for over 36 hours with a high fever. Despite multiple phone calls directed to him, the obstetrician did not order antibiotics nor did he come into the hospital to examine her until just before the baby was born. The baby was delivered with a fever and a severe brain infection. The experts testified that the baby’s infection was caused by the untreated bacterial infection in the mother. The brain infection left the baby with severe cerebral palsy and mental retardation. Win or loose, the case is not frivolous. I can relate dozens of examples of cases like these where patients have sustained serious, life altering injuries due to medical malpractice. Even so, all would be labeled “frivolous” by the tort reformers solely because they involve claims of medical malpractice.
Without the ability to file a medical malpractice lawsuit, the cost of care for the elderly quadriplegic woman would have been born by Medicare. The life time costs of care for the baby with preventable cerebral palsy would be paid by Medical. In other words, the taxpayers would pay for injuries caused by negligent health care providers. In California, patients like those described here have had their pain and suffering damages limited to $250,000 for decades. Tort reformers want to place a cap on pain and suffering damage patients like them nationwide.
Medical practitioners carry professional liability insurance to cover incidents in which they may commit malpractice. Judgments and settlements are paid by their insurance companies, not doctors and hospitals. It is the insurance companies, also known as tort reformers, who want to protect their profits and transfer the cost of medical malpractice to the taxpayer wherever possible.
