TorteDeForm

Michael Townes Watson

Broken Healthcare and Justice Systems

A story appeared on September 17 in the Kerville, Texas Daily Times, about a 73-year old man seeking a lawyer to represent him in a wrongful death case about the loss of his wife of fifty years. It is a story that unfortunately has played out the same way for many others over the past four years since Texas passed a $250,000 cap on non-economic damages in medical malpractice cases. Mr. Richard Miller has been unable to find a lawyer to take his case, not because anyone has determined that there was no malpractice; and not because Mr. Miller or his deceased wife are not good people. The case simply is not one, under the current law of the state of Texas (like the laws of 27 other states that have capped non-economic damages) that justifies the expense involved in taking on such cases.

When juries are limited to an award of $250,000 for the death of a victim like Ms. Miller, then it makes no sense for a lawyer to take on the case, spend possibly over $100,000 for expert witness fees and the thousands of hours of time necessary to prosecute the case. It is not just that a lawyer’s time is expensive, it is also that someone in the shoes of Mr. Miller could spend three to five years of his life in litigation, only to hear from a judge and jury at the end that his wife’s life, in their golden years, was worth nothing more than the cost of sending George W. Bush to prep school.

Ms. Miller went to a local clinic for a “quick and easy” day surgery to relieve pain in one of her legs, but ended up dying after a three-month battle with paralysis and brain dysfunction. The doctors and clinic would not ever tell Mr. Miller what had happened to his wife of fifty-five years. The newspaper article about the case says that there are thousands more like Mr. Miller who have lost loved ones under suspicious circumstances, but have not been able to pursue a measure of justice, just as the insurance companies planned when they inundated the state legislature with their lobbyists in Texas in 2003. I was a medical malpractice lawyer in Texas when that change occurred, and know too many of these personal tragedies. See www.StopMedicalError.com.

The laws protecting patients and their families who are victims of medical error have been emasculated, on the pretext that new laws would lower the cost of healthcare. Yet we are continually seeing articles in the national media about the huge increases in the cost of the healthcare that ends up injuring patients. The annual survey of employer-sponsored plans, conducted by the Kaiser Family Foundation and the Health Research and Educational Trust, has charted the upward trend in healthcare costs for years. "There's no tipping point at which health insurance becomes scientifically unaffordable," Kaiser President Drew Altman said at a press conference announcing the survey results. "But we have reached a point where it's become more unaffordable for more employers and workers."

A record number of Americans are without health insurance, according to new U.S. Census Bureau statistics released last week. Some of the trend can be explained by employers who are curtailing coverage or making it too costly for lower income workers to afford, the report said. There are even some reports that, thanks to an increasingly complex coverage system, many U.S. kids who are privately insured are actually having more trouble getting recommended vaccines than kids who have no insurance at all.

The healthcare system is broken and the patients are taking the beating from the fallout. There is no access to justice in many states where damage caps have been put in place, and healthcare is inaccessible to many. It is time to take a critical look at major nationwide reforms to bring safe, affordable care within the grasp of every American. We rank lower than any other major industrialized country in infant mortality and life expectancy, yet our healthcare costs are the highest. We should take examples from others who are doing a better job.

Michael Townes Watson: Author Bio | Other Posts
Posted at 12:19 PM, Sep 18, 2007 in
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Comments

If medical malpractice is so widespread, why aren't the attorneys grabbing these cases to make money by sheer volume. Then again, if a case is hard and expensive to win it probably is not one that is cut and dry, so the whole issue of malpractice in the first place is in doubt.

To fix healthcare, we need to fix how it is paid for, that is to say we need insurance reform. The article above is a perfect example of how economics run healthcare and tort law. Caps hurt attorneys in the pocketbook. High med mal rates hurt doctors in the pocket book. Where does all the money for the pocketbook come from, INSURANCE.

Posted by: throckmorton | September 18, 2007 1:08 PM

I agree w/ you that insurance is the underlying problem, but I disagree w/ your critique of medical malpractice as a failed means for addressing medical errors due to the complexity of litigation. It's the cases that aren't cut and dry that need litigation the most. The cut and dry cases are more likely to be settled.

It is precisely because of damage caps that attorneys aren't "grabbing these cases" as you say. They're not going to take a case where they get attorneys' fees but their clients get nothing, or where neither of them will get compensated. That's a waste of everyone's time and just doesn't make sense.

I agree that insurance reform is necessary.

Posted by: Kia | September 18, 2007 2:14 PM

No doubt comprehensive reform encompassing all aspects of the problem (insurance reform, tort reform, political reform is necessary) but merely to say insurance reform is necessary is merely a glib answer.

Actually considerable reform is needed everywhere, particularly in bar discipline and small claims court reform. Shoot, in Florida lawyers are not held to the same high standards that claim adjusters are held - an offense that would cause an adjuster to lose his license permanently, merely nets a one year suspension in Florida (see Florda Bar vs Jonathan Isaac Rotstein)

Posted by: Paul W Dennis | September 18, 2007 9:30 PM

Damages in med-mal cases are supposed to be compensatory. They're not supposed to be calibrated to the cost of hiring lawyers (let alone a windfall for the plaintiff and his lawyer). So griping about the $250K cap makes no sense.

If you think it's too expensive to hire lawyers to handle med-mal cases, then you should support loser pays.

Posted by: David Nieporent | September 18, 2007 9:34 PM

Michael: I do not appreciate your misleading statements. Our statistics are different, and cannot be compared to Euro Commie Care.

For example, we try to save premature infants here. When one dies, we call it an infant mortality. They throw them in the trash, and call them miscarriages in Commie Care.

Nor are even the rich, the famous treated any better. If Princess Diana had her crash injury in the worst slum of the US? She would have been flown by helicopter to the trauma center 4 miles away. Under Commie Care, they futzed at the scene for 45 minutes. Then they took an hour to travel the four miles. Untrained techs, equipped as if this were the 1940's, stopped the ambulance twice to do street resuscitation of a person bleeding out from a tear in her aorta. Here, within 15 minutes, it would be a thoracic surgeon futzing in an operating room, and not untrained dolts in the street, as in your Commie paradise.

Commie Care killed Princess Diana, you misleading left wing, pro-litigation biased land pirate.

Posted by: Supremacy Claus | September 19, 2007 4:35 AM

In response to Mr. Dennis' comments, I agree that there needs to be other reforms as well. Both medicine and law are businesses and respond to economic pressures. One thing that I have proposed in the past and you mentioned is attorney discipline. I agree that this is essential for the process. So far, attempts to hold attorneys to the same scruitiny in the form of malpractice as other professions has been difficult but strides are now being made. When attorneys face the thought that their every action, word or lack their of can be grounds for a suit or at least a major windfall for another attorney we may see some change.

In Tennessee there is now a definition that there exists a "statewide standard of legal practice" and this is getting tested in multiple legal malpractice cases. Legal firms are now advertising in the state for legal malpractice claims.

One of the old ATLA arguments was that malpractice lawsuits improve quality. We will see how it applies to the legal profession. Once, attorneys face the same economic pressures as others we may see more support for reform. In the meantime, we still have to hit the major checkbook, INSURANCE policy.

Posted by: throckmorton | September 19, 2007 7:44 AM

Some of the comments to my post suggest that the readers believe I was trying to make a commentary on how to fix the healthcare system. I was not, nor could I pretend to do that in such a brief statement. There is much that I can agree with in some of the comments. However, to call me a "misleading left wing, pro-litigation biased land pirate" does not advance the discussion. I do not believe we wrong with the healthcare system by comparing ourselves to "Commiecare," whatever that is; just as we have not and cannot fix the system by limiting damage awards. My point is, just like other comments, we need a comprehensive overhaul, rather than blaming lawyers for the high cost of healthcare. Perhaps Mr. Supremacy Claus is not aware of the fact that even the New England Journal of Medicine, not considered a Commie publication, says that lawyers are not to blame for the high cost of healthcare. I would welcome some legitimate comment rather than comparison to a high-speed royalty crash in a foreign country. Michael Watson

Posted by: Michael Watson | September 19, 2007 9:56 AM

Yes, damages are supposed to be compensatory--meaning they should actually *compensate* the victim, not set arbitrary limits on their compensation in order to provide a convenient cost/benefit calculus for insurance companies and the health care industry.

There are countless stories of victims of medical malpractice whose damages go well into the millions, but who can only recover $250K, $300K, $500K. They are thus first robbed of their health and then of the compensation they deserve for entrusting their doctor/nurse/etc. with their health. Ever heard of Frank Cornelius? The guy who was a huge tort reformer and insurance industry lobbyist until his own medical malpractice experience left him victim to the damage cap he pushed to create? Terrible story but it shows you that these caps do NOT have patient safety or welfare in mind.

We keep talking about how capping damages saves "costs", but for whom? And what about the savings we enjoy-in terms of better safety measures, more accountability, more adequate compensation-under an effective tort system that doesn't arbitrarily limit how much a victim can recover, regardless of the extent of the victims injuries?

Posted by: Kia | September 19, 2007 10:00 AM

I would also ask that personal attacks against contributors and commenters cease from this point forward. It is not productive and it is beneath the purpose of this blog.

Posted by: Kia | September 19, 2007 10:36 AM

Remember that we are talking about a cap on non-economic damages - in other words punitive damages. Economic damages are not capped, so if a person was permanently disabled by medical malpractice, they would be entitled to potentially millions of dollars for medical care. Unfortunately, economic damages don't really come into play for death caused by medical malpractice, and the capping of punitive damages makes it economically not feasible to take the matter on as a contingency. However, assuming they can afford it, client can always pay an hourly rate to litigate the matter.

Posted by: Ron | September 19, 2007 12:56 PM

Kia: I know you favor the left, and your site is totally biased. I note no criticism of misleading left wing ideologue propaganda. Bad faith deserves loving personal correction. When the left gets personal, it uses violent intimidation and mass murder of 100 million people, and not loving personal correction. The left remains in failure wherever tried. You have not learned from the horror experience of the past 100 years.

Here is the bad faith. The left wants central control, by whatever means necessary, managed by a small elite, namely yourselves. It is self-dealing.

Michael misleads yet again. Both JAMA and the New England Journal of Medicine are Commie propaganda rags, when it comes to health policy. They allow no rebuttal of their horrible proposals to devastate our health system. The articles in the NEJM, to which Michael refers, require closer reading. Start with the author list at the beginning. Half the authors had JD's. These land pirates then had extended indoctrination sessions of trainees. The medical records of experienced clinicians were rated for malpractice by inexperienced residents. The inter-rater reliability measures were quite mediocre, making the conclusions total garbage. Worse, these trainees had been brainwashed by biased, Commie land pirates, promoting the self-dealing agenda to plunder and dominate health care. Michael may have overlooked that little problem.

I think not. I think he was misleading with a Kissinger lie. Kissinger made that form of lying famous testifying on progress of the Vietnam War, and failing to mention the illegal, massive bombing of Cambodia. When asked about that later, he said, no one asked him about it. He learned this slick form of bad faith in Boston, too.

I think your site needs an upgrade in good faith. Stop inviting self-dealing land pirates making claims in bad faith, instead of criticizing the loving correction of those who love the lawyer.

Posted by: Supremacy Claus | September 19, 2007 1:04 PM

Kia: Good questions, 1) "We keep talking about how capping damages saves "costs", but for whom? 2) And what about the savings we enjoy-in terms of better safety measures, more accountability, more adequate compensation-under an effective tort system that doesn't arbitrarily limit how much a victim can recover, regardless of the extent of the victims injuries?"

1) Every penny comes from the care of other patients, in higher costs or reduced access. Not a single penny comes from the assets of an insurance company.

2) There is zero evidence of enhanced safety. All evidence points to torts causing massive cover ups, and burial of mistakes. Litigation has pierced peer review privilege, the most vicious kind of accountability by knowledgeable insiders who send patients to the careless providers, and can destroy them. Peer review is dead.

All improvements have come from the motivation and technological savvy of insiders to improve their services, despite the obstacles of litigation, despite the suicidal risks to that agency of open review. Here is a horrid example. Fear of employment litigation compelled several hospitals to fire a nurse, and to hide the suspicion from future employers that he had assassinated dozens of helpless patients in his care. Every one of these murder victims, after the first couple aroused suspicion in supervisors, owes their death to the employment bar.

Every preventable medical error is the fault of the medmal bar. Every candid revelation risks killing a hospital with ruinous litigation. Patients, especially poor ones, then have to scramble to find lawyer disappeared care.

Posted by: Supremacy Claus | September 19, 2007 2:28 PM

Ron makes a good point that the caps discussed in this blog are on non-economic damages. Some states however have passed tort "reform" legislation to cap actual liability damages. For instance Oregon had a liability cap at 200,000. Ironically, an Oregon doctor who was the victim of medical malpractice has been fighting this legislation, which prevented him from recovering anything for going in for back surgery and coming out paralyzed.

Every preventable medical error is the fault of the medmal bar. Every candid revelation risks killing a hospital with ruinous litigation. Patients, especially poor ones, then have to scramble to find lawyer disappeared care.

False. Even if preventable medical errors went UNREPORTED due to fear of litigation, this says nothing about the cause of the errors actually taking place. The best way to avoid med mal lawsuits is to reduce medical errors. The best way to ensure that medical errors can continue, patients can be injured, and no one will be held accountable, would be to remove the option of medical malpractice litigation from the equation.

Many med mal cases center around hospitals' hiding information or providing misleading information to the patients. That said, if the truth is that a doctor/nurse/hospital staff departed from professional standards and harmed another person, then yes, they are supposed to be held accountable. That's part of the deal of the profession.

(Literally) 98% of medical malpractice injuries are never taken to court. But those that are taken to court often center around the fact that patients were lied to, ignored, avoided, or misled about what really caused their injury.

SC's horrific example (where is it from?) is also a sad example of scapegoating responsibility from the person who actually did the crime and the agency charged with supervising that person, onto the people and the profession that essentially serves a watchdog. The hospital basically said that they knew that their employee's actions were causing deaths, but that it would cost less to be quiet and let more people die than to own up to the fact that this took place. Sick. The responsibility for those deaths lies in the hands of the nurse who killed the patients. And liability for not properly monitoring his actions rests with the hospital.

Posted by: Kia | September 19, 2007 4:45 PM

Kia: The case you requested:

http://en.wikipedia.org/wiki/Charles_Cullen

Posted by: Supremacy Claus | September 19, 2007 6:12 PM

Yes, damages are supposed to be compensatory--meaning they should actually *compensate* the victim, not set arbitrary limits on their compensation in order to provide a convenient cost/benefit calculus for insurance companies and the health care industry.

But non-economic damages are inherently arbitrary. And that's all we're talking about. So when you write:

There are countless stories of victims of medical malpractice whose damages go well into the millions, but who can only recover $250K, $300K, $500K. They are thus first robbed of their health and then of the compensation they deserve for entrusting their doctor/nurse/etc. with their health.

it misses the point. Actual damages should of course not be capped. If someone needs a million dollars worth of future medical care, they should get a million dollars. If they lost wages of another million, they should get another million. But there's no reason to throw an arbitrary extra few million, or tens of million, or whatever number a jury pulls out of a hat on top of that for non-economic damages.

The bottom line is that because the trial bar so opposes loser pays, they use non-economic damages to compensate attorneys in med-mal cases. But that's inappropriate.

Posted by: David Nieporent | September 20, 2007 2:58 PM

David supports loser pays. I repeat the standard lawyer argument against that idea.

"Would you like OJ to get his legal costs from the LA taxpayer after the first trial?"

I would not.

The more precise remedy, and as effective, would be to pass this statute:

"The adverse third party of a litigation claim may sue the opposing lawyer for legal malpractice under the following conditions;

a) The plaintiff has suffered a injury or loss, economic or non-economic, from a deviation from professional standards by an opposing lawyer,

b) A certificate of merit listing the known deviations from such standards is attested to by a lawyer experienced for 5 or more years in the same specialty, and is filed with the claim,


c) The plaintiff’s claim may arise from an injury resulting from negligence, and no malice need be proven,

d) The lawsuit is filed within two years of the resolution of the matter during which the injury took place."

Posted by: Supremacy Claus | September 23, 2007 1:12 PM

You know I can understand the to cap the amount for malpractice , but as a survivor of a spinal injury now 37 years I can also understand even more the need to insure the health of a patient who put's there lives in a Doctors care . No matter the cost because to me I would rather have my quality life than to have a Doctor to tell me one thing understandably knowing he cannot deliver . Then when it comes to the aftermath he turns his head ! I to need a lawyer and cannot get one .

Posted by: Timothy Tyler | September 23, 2007 5:37 PM