True Medical Malpractice Reform

Originally published September 2009 in the Star Tribune.

The so-called medical malpractice “reformers” are intent on slamming the door of justice in the face of families like that of the late Matthew Kuttner. He was only 3 years old when his parents entrusted him to their local hospital and an ENT specialist doctor for a routine tonsillectomy. He died on the operating table. The doctor failed to keep track of and remove pieces of his excised tissue, which went into his lungs and slowly suffocated him to death. The hospital attendant he was left with failed to appropriately react to the distress signs. The jurors of Minnesota’s conservative Goodhue County, some of whom used that hospital and one of whom was a nurse, heard the evidence from experts on both sides, and found that the doctor and attendant failed to use the care recognized as standard. They set $1.8 million as justice for Matthew’s parents, sibling and grandparents for their loss of him.

Would a politician have the guts to walk into that courtroom immediately after the verdict was read, look in the eyes of those jurors and the Kuttner family, and tell them that they were wrong, that justice should be no more than $250,000? Would he tell them that he knows better, even without hearing and seeing the evidence? Would he tell them that his group of politicians in Washington know better because of their talks with insurance lobbyists, who have handed $millions in campaign contributions to them?

Imagine yourself as Linda McDougal, lying in a hospital bed in St. Paul immediately after both of your breasts were surgically removed, being told by a doctor that it was all a mistake, you never really had breast cancer? No, you really can’t, and that is a major reason why the campaign of the tort “reformers” has found fertile ground in our society. Insurance lobbyists and many politicians, mostly Republicans, are trying to establish law that tells citizens like Linda that the insurance corporation for the negligent doctor will pay her no more than $250,000 for her pain, emotional distress, scarring and  maiming. These “reformers” are hoping that enough citizens and lawmakers will ignore the Golden Rule.

Try putting yourself into the body of the 20 year old first-time expectant mother who I did a trial for in St. Cloud a couple years ago. At an early checkup with the doctor on her pregnancy, a colposcopy procedure was recommended. The cervix is coated with a 4% acidic solution, and certain infections will appear when viewed with a colposcope by the doctor. The doctor, the hospital lab and the registered nurse screwed up, and they coated her with 100% acidic acid! They continued with the procedure through her crying and begging them to stop, thinking she was just a hypersensitive type. Then they sent her home, telling her to soak in the tub if her “sensitivity” continued. The jury in Stearns County saw the photographs of the permanent scarring in her pelvic area, and where the acid drained down onto her buttocks, photos that her grandmother insisted be taken a few days after the ordeal. The jury in conservative Stearns County rendered a verdict of $400,000. People like Representative Michelle Bachman, whose district this young lady lived in, are essentially saying that they knows better, and people like young mothers should be limited to $250,000.

Insurance and other large corporations, along with such politicians, have propagandized the claim that big verdicts are the cause of skyrocketing health care costs. This false claim has been debunked by a number of studies. One is Falling Claims and Rising Premiums in the Medical Malpractice Insurance Industry, released by a coalition of national consumer groups and commissioned by the Center for Justice & Democracy. It finds that over the last five years, “doctors have been unnecessarily price-gouged for several years as insurance industry surpluses have ballooned to unprecedented levels. AIG, under investigation by state and federal authorities for its business practices, and HCI, a subsidiary of HCA, the largest for-profit hospital chain, are among the worst offenders.”  The attorney general of Missouri announced: “There is no excuse for malpractice insurers doubling their rates while claims payments decrease.”   

Not only would caps on damages be cruel to the most badly harmed by malpractice, they simply don’t lower premiums for doctors.  The October, 2008 issue of the Medical Liability Monitor (a medical-insurance journal), showed that the average premium for Minnesota’s internists, general surgeons and OB/GYN specialists is the second lowest among all the states.  Similar doctors in California, which has had a $250,000 medical liability cap for years, pay over three times the premium a Minnesota doctor pays.  Texas also has a $250,000 cap, and its doctors pay over 4 times what a Minnesota doctor pays in malpractice premiums.  Minnesota has no cap on damages, preferring to let a jury of citizens decide. Get the picture?   

What about a true medical malpractice crisis, the malpractice itself? A study done in 2000 by the Harvard Medical School and The Institute of Health found that medical errors have killed up to 98,000 people a year in America. The health professionals recommended specific steps to end this crisis. The Veterans Administration has led the way in instituting such systems, from computerizing prescriptions for accuracy, to using bar code wrist band systems to make sure the right patient gets that amputation, or gets that specific drug in the correct amount. Procedures to stop the epidemic of deadly hospital infections is another overdue change. Pitifully few American hospitals and clinics have followed.  Let’s do true reform and slash the malpractice itself.

At its heart, so-called tort “reform” is really about wrongdoers escaping accountability.  It is about gutting a key constitutional right of American citizens. The Seventh Amendment of the United States Constitution guarantees the right to a jury trial to any citizen who is done wrong by another. Along with the lawyer contingency fee that sprang from it, it is the key to the courthouse door of justice for everyday citizens who are wronged by the powerful. Limits on damages and other so-called “reforms” are simply efforts to gut this key constitutional right.

 If “We, the people” don’t stop them, you, or someone you love, will inevitably feel the injustice. 

- Brian Wojtalewicz
September 2009