When The Silence From Tort “Reformers” Speaks Louder Than Words
When you look beyond the tired and twisted rhetoric employed by advocates for tort “reform,” you will notice an unsettling trend. They never address the source of what they label “the medical malpractice crisis”–negligent medical care that injures and kills patients. And so they walk around as if they somehow missed the news that a world-renowned medical center here in NYC reduced payouts for medical malpractice claims by 99% through the institution of a rigorous patient-safety protocol in its OB/GYN department. And how about this “minor” detail: sentinel events like avoidable deaths and severe injuries dropped from 5 in 2000 to 0 over the course of 2008-2009. It sounds important, because it is. But whatever was achieved, and proven, through the NY Hospital Weill Cornell Medical Center’s study, you didn’t hear about if from the tort “reformers.”
So it is no surprise that the same tort “reformers” turn a blind eye to a related, but equally important source of medical error: the failure to properly discipline error-prone physicians. This is a nationwide catastrophe, as I discussed in a recent post. And it is not exactly a long jump, logically speaking, to conclude that the failure by hospitals and medical societies to follow up with their own disciplinary findings allows error-prone doctors to continue to hurt and kill patients.
What you do hear about from the tort “reformers” is “lawsuit abuse.” They love terms like: “frivolous lawsuits,” and seek to portray victims of negligence and their “trial lawyers” as lawsuit-happy opportunists who file flimsy cases at the first sniff of the chance to obtain all that easy money, that “jackpot justice” that somehow automatically comes into their bank accounts, despite the traditional hurdles of scrutiny by insurance company lawyers, judges and juries. Not surprisingly, many doctors, and particularly those in need of discipline, are big fans of tort “reform.” The movement has a very attractive element for them: no accountability to patients for their errors. So it was somehow not surprising to see this choice item. It’s about a Delaware surgeon who chafed under the discipline rightfully imposed on him. But he didn’t stop there. He sued his hospital over its unfairness, as he saw nothing wrong with screaming at OR staff while waiving surgical drills at them, or inviting reporters into his OR under false pretenses in a failed effort at self-promotion. And I’m going to go out on a limb here, and guess that the patient was not informed that he would be center stage in a show created by his surgeon.
When will the tort “reformers” talk about this frivolous lawsuit? It certainly added to our nation’s healthcare costs, as the hosptial involved had to defend itself in court. In fact, as the article shows, there was a dispute about legal fees. Hello out there? Tort “reformers”? Your silence is deafening.
AARP Comes Out Against Medical Malpractice Caps in NY
ASSEMBLY MAKES RIGHT MOVE ON REJECTING
MEDICAL MALPRACTICE CAPS
Statement by
Lois Wagh Aronstein
AARP New York State Director
March 15, 2011
AARP commends the leadership of Assembly Speaker Silver and the Assembly for putting forth a budget proposal that rejects the Governor’s proposal to severely restrict consumers’ ability to recover damages in medical malpractice cases. We are disappointed that the Senate did not similarly reject this proposal in their budget.
The Governor’s proposal would impose an unreasonable and artificial cap of $250,000 on non-economic damages, such as pain and suffering awards. This proposal will hurt many consumers, particularly seniors, by making it much harder for these individuals to obtain justice in the courts when they have been injured by the negligence of others. Older persons, who have few, if any economic damages because they may no longer be employed, will not be fully and fairly compensated if such a cap were imposed.
Preventable medical injuries that are the result of medical errors are widespread and costly. Older patients are particularly vulnerable to preventable medical injury. An AARP Public Policy Institute paper found that at least six percent of hospitalized patients age 65 and older suffer a treatment-caused injury serious enough to result in a measurable disability or to prolong their hospital stay. This is approximately twice the rate of injury in younger patients.
A $250,000 cap could allow those who caused the injury to avoid being held fully accountable for the pain and suffering they have caused. Capping non-economic damages, particularly for this vulnerable population, sends the message that these individuals can be harmed by the negligence of others without any serious financial consequences. It will simply be another cost of doing business. We cannot let this happen in our state.
AARP strongly believes that a final budget should not include this very harmful cap on a consumer’s ability to seek justice for the pain and suffering caused by medical negligence.
The Tort “Reformers” Have No Clothes
Today, I continue to focus on the fallacy of the tort “reform” movement. Because as Eric Turkewitz reaffirms in today’s New York Personal Injury Law Blog, and as I have argued, tort “reform” does not save lives–reforming careless medical practices will. And so, the “reformers” prattle on about legislation to cap awards and prevent access to the courthouse, while utterly failing to ever address reforms that would increase patient safety.
But let’s forget about reforms of legislation, and reforms of patient safety programs for a moment, and acknowledge that there is another area of needed reform that the insurance companies, medical societies and doctors don’t like to talk about. It’s doctor discipline. Medical societies fail at it, as do hospitals. Insurance companies could deny coverage to doctors with a well-established history of injuring or killing patients, yet they rarely do. Why would they, when doing so would deprive them of a steady income stream (premiums), and deprive the hospital at which the doctor works of an additional stream of paying patients?
Today’s Washington Post contains this article, “Report: State Boards Don’t Punish All Doctors Sanctioned By Hospitals.” And this isn’t the first article of its kind to be published. Why would reform in the area of doctor discipline be a good idea? Because it is the doctors who are being “disciplined” in the careless and ineffective manner that is the standard of practice today who are making most, if not all, of the errors that injure and kill patients. Cosumers’ rights groups have always maintained, based on a wealth of studies, that most doctors are competent and better, and that is a relative few incompetent doctors who make the majority of errors. So why is there no pending legislation mandating that wayward doctors actually receive the discipline or retraining deemed appropriate for them by state boards?
And why is there only one voice in the NYS legislature, that of Assemblyman Rory Lancman, advocating for legislation based on a proven method of reducing costs and injuries, i.e., the groundbreaking patient safety initiative at NY Weill Cornell Medical Center, which resulted in a 99% reduction in costs and injuries? Shouldn’t this system by instituted at all NYS hospitals?
And how is it that major medical centers who claim to bear the brunt of so-called “runaway” medical malpractice verdicts have CEOs making salaries in the millions of dollars that are funded by us, according to today’s NY Times? Someone, or some movement, is not being honest here. And I can assure you that it is not the victims of medical malpractice.