Tort Reform - An Infringement on Rights and a Corporate Handout

Posted on January 14, 2010 by Neda Sargordan

In the ongoing debate over health care, Republicans and lobbyists for Big Business continue to clamor for tort reform. To understand tort reform, one must first understand what a tort is. Simply put, a tort is an intentional or negligent act which causes injury (physical, monetary, and/or mental) to another party. When a tort has been committed, the injured party has the right to sue her wrongdoer in civil court. Some common examples of torts include medical malpractice, negligence, and strict products liability. Tort reform refers to legislative measures designed at limiting the amount of damages available to plaintiffs who take legal action for their injuries.

Today’s campaign for tort reform is by no means new or unique. In fact, the tort reform movement was born in the early 90’s by tobacco industries looking to dodge liability in failure to warn and personal injury cases. From its inception, the campaign was designed to appeal to a broad range of corporate interests. It didn’t take long for the pharmaceutical, chemical, insurance, and automobile manufacturing industries to jump onboard the tort reform bandwagon. To date, these industries have collectively poured millions of dollars into public relations campaigns aimed at deceiving the public. The message: Trial attorneys and injured patients file frivolous lawsuits in search of deep pockets and, in turn, drive up health care costs for average, hard-working citizens like you!

These accusations need to be set straight. Before we get into the real motivations behind tort reform, let’s hit the violin music and dim the lights (a little more please…) and consider the real and convincing facts. According to the Institute of Medicine, 98,000 patients die annually as a result of medical error, making medical negligence the sixth leading cause of death in the United States. Remember now, this is the number of patients who die each year, not the number of people who are left scarred and seriously injured for the rest of their lives. While 46 states have enacted some version of tort reform, the cost of health care continues to sky rocket as doctors have begun practicing “defensive medicine” (ordering of unnecessary medical tests and procedures) out of fear of medical liability. 

Medical malpractice insurance companies, the most zealous advocates of reform, are and will forever be the sole victor in the tort reform movement. In the last 10 years alone, the medical malpractice insurance industry has seen a 47% increase in profitability. According to the American Association for Justice, in 2008 the average profit of the 10 largest medical malpractice insurers was higher than 99% of Fortune 500 companies and 35 times higher than the Fortune 500 average. These profits have been pocketed by insurance companies and have never passed savings to doctors or injured patients. So really, tort reform is just another handout to corporations and insurance companies. Moreover, placing caps on victim recovery, suggesting shorter statute of limitations periods, and proposing the creation of special medical courts to try malpractice cases, are nothing more than corporate attempts to restrict victim access to the legal system for redress of harms and wrongs. 

Learn more about the role of our civil justice system in the current health care debate! Visit www.98000reasons.org to find out how you can help put people over profit!

Tags: , , , ,

Are Medical Malpractice Lawsuits Frivolous?

Posted on September 4, 2009 by Nancy Gardner

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.

 
Tags: , , ,