I am a personal injury trial lawyer in Texas. My client’s access to the courts and their ability to fight large corporate interests, including insurance companies, depends upon their ability to contract with me on a contingent basis. In other words I don’t get paid unless I win their lawsuit. From a pure economic reason I have always been reluctant to take on an expensive, complicated case unless I determine it has strong merits. This has always been the case in medical negligence cases since they are time-consuming and will demand large amounts of cash outlay.
Sometimes insurance companies argue that they are put in a hot spot if the injured patient makes an offer because they fear that a jury might give much more than the case is worth. The reverse has been my experience. Defendants normally win their cases and juries are much more likely to award a conservative amount than an excessive one. Many times good cases settle for less than their value because the injured patients are less able to afford the risk of trial than a large insurance company.
I decided to represent injured parties who need a champion in the court room because it seemed to be such a noble cause. I also felt I could do a public good by acting as a check and balance to encourage reasonably safe products, prudent conduct on the roads and workplace and conscientious professionals. Certainly formidable interests such as insurance can afford political gravity and advertisement to sway the public regardless of the facts, but trial by jury I felt should be the great equalizer.
Some argue that special protection for medical providers is necessary to avoid a diminishing of the doctors needed for our care and outrageous medical costs. But on what could anyone exercising intellectual integrity base such an outlandish claim?
There is no creditable national study showing a decrease in doctors. The doctor population is increasing impressively. According to the 2004 AMA report, the number of physicians practicing in the U.S. grew 203% from 1965 to 2003—four times faster than the population growth. The number of high risk practices grew dramatically during the same time period. Applications for residency training positions by medical school seniors hit a 20 year high in 2006 according to an American Association of Medical Colleges’ press release.
President Bush said in a speech in 2004 that lawsuits were “driving docs out of business,” yet it is undisputed that malpractice costs amount to only .0062 of our nation’s health care costs, (less than 2/3’s of a penny of a health care dollar). Ironically, the insurance industry tries to prove there is a crisis by citing the huge premiums it charges doctors and hospitals without any statistical basis justifying their rates. Historically, states that pass “tort reform,” including Texas, have not been rewarded by lower insurance premiums.
President Bush’s own Mark McClellan, (appointed by the President to head the Food and Drug Administration), wrote an article postulating that doctors practice “defensive medicine” which drives up health care costs. This theory was necessary since less than 2/3’s of a penny of the health care dollar could not justify taking away victims’ rights. It is interesting to note that McClellan’s report stands alone and the Congressional Budget Office and Government Accountability Office dismiss the theory and refuse to take it into account for making cost estimates.
I suppose the insulation industry practices “defensive installation” by not using asbestos and Ford Motor Company practices “defensive auto design” by moving the Pinto’s exploding gas tank because of lawsuits seeking damages to our citizens; but I don’t necessarily think that such fear of being brought to task is a bad thing.
My opinion is shared in the May 11, 2006 issue of the New England of Medicine by George J. Annas, J.D., M.P.H.: “And more liability suits against hospitals may be necessary to motivate hospital boards to take patient safety more seriously.” In the same issue a study entitled Claims, Errors, and Compensation Payments in Medical Malpractice Litigation, concluded payments of claims found by the study not involving error occurred less frequently than non-payments for claims involving error. Claims the study found not involving error caused 13%-16% of the total monetary cost of defense.
The lack of economic impact of medical negligence cases is not a new revelation. Harvard Medical School ran an extensive study in 1990 and determined that only a very small percent of negligence causing injury to a hospital patient in New York State resulted in any recovery. It found that 8 times more patients suffered injury or death from negligence than filed a lawsuit and 16 times more patients suffered injury or death from negligence than received compensation.
Texas has been no exception to the national experience. The Tonn study in 1992, financed by the Texas Trial Lawyers Association, Texas Medical Association and the Texas Hospital Association, finding there to be no medical malpractice crisis, (“. . . changing the medical professional liability system will have minimal cost savings impact on the overall health care delivery system in Texas”).
Most recently, a study reported in the July, 2005 Journal of Empirical Legal Studies entitled Stability, Not Crisis: Medical Malpractice Claim Outcomes in Texas, 1988-2002, concluded that there was an overall picture of stability which did not justify legal reform in Texas.
Texas malpractice legislation is a classic example of power over reason, castrating the protection of Article I Sec 3 of our state constitution mandating that no individual or group of individuals be allowed special rights or privileges over other citizens and Article I Sec 15 guaranteeing the right to trial by jury.
Texas, as in other jurisdictions, tries to make a victim whole by allowing money damages if it is found that a doctor or hospital breached the recognized standard of care and foreseeably caused injury to the patient. The damages allowed in a medical negligence case are the same for which each of us is accountable if we negligently hurt someone, such as in an automobile accident.
One category of damages is economic. It can be figured by an accountant gathering some data and making projections of earnings, or earning capacity, and medical expenses.
The other category is “human damages,” or, as the insurance industry wants to call them, “non-economic loss”. Human damages are pain, anguish, disfigurement, physical impairment or the loss of a relationship with a close family member killed or profoundly injured. Under the current malpractice law in Texas this is capped at $250,000 in almost all cases. This cap doesn’t stop frivolous lawsuits. Its effect is on the meritorious ones with overwhelming human damages. The net good is for the insurance industry.
Some argue that money can’t replace quality of life and should not be considered. Yet compensation for the cost of burying your child wrongfully killed, and nothing else, does not meet the sense of justice that courts should provide. Certainly the right to trial by jury should not be inhibited without compelling state or national interests. Where is the evidence that there is a crisis that justifies this attack on our civil justice system? Why should doctors and hospitals be afforded more protection than the rest of us?
Statistics show the disingenuous nature of the lawmakers, but it is the individual examples that explain the impact of the wrong. True life examples such as a child transformed into a rag doll due to septic shock resulting from untreated infection at an IV site; a woman who loses her arm because of an inappropriate administration of Phenergan; and a mentally disabled woman raped by a nurse’s assistant in a nursing home, are limited to a minimal recovery because of the preponderance of human damages.
If a new medical malpractice client came into my office and I determined she was one of the people who deserved a day in court, I would have to hire an expert in the same field of expertise as the defendant and provide 60 day notice before even being allowed to file a lawsuit or conduct discovery. After a lawsuit is filed I must provide a detailed expert report within 120 days from the date of filing, armed with a maximum of two depositions. Peer review at a hospital of a negligent act of a doctor—regardless of how egregious—is forever secret. The doctor or hospital will automatically have colleagues who will assist in the defense. My fees and expenses must come out of the victim’s recovery and can not be mentioned to the jury.
The professionals being driven out of the arena are not the doctors but competent attorneys who have the ability to represent someone injured in a sophisticated case. Many of my fellow attorneys refuse to look at any case if it is post tort reform medical malpractice case. Although I never have carried a large medical negligence case load, currently I have none.
Do the vast majority of doctors who practice competently and ethically really want the last vestige of check and balance taken out of the system? The Texas Board of Medical Examiners is at best lax in weeding out the doctors who should not be practicing. Of doctors in Texas found to have provided substandard care, incompetence or negligence, 3% received a revocation or suspension of their license according to a July 2002 press release by consumer watch dog, Public Citizen. It also reported that some Texas doctors committing bizarre violations such as writing prescriptions for sexual favors were allowed to keep their licenses.
In the 2003 campaign causing the passage of the Texas medical malpractice tort reform, insurance campaigners promised a 17% to 19% reduction in premium costs. What wasn’t pointed out was profits of the insurance companies went up 225% between 2002 and 2003. After its passage Governor Perry bragged about Texas Medial Liability Trust reducing its premiums 12% but neglected to mention the previous 140% increases it pushed past the Texas insurance commissioner.
The function of insurance premiums is dependent on investments the insurance companies are making and the political power they have with the state insurance commissioners. The effect of law suits comes in a poor third. The insurance commissioner in Texas has been a cash cow for the industry and has no idea about what numbers support its premiums. Call him up, (1-512-462-6169), and ask.
After the passage of medical malpractice caps the various insurance companies attempted to raise their rates again, flying in the face of their promise for a premium reduction if the measure passed. The Texas Medical Liability Insurance Underwriting Association sought a 35.6% increase and GE Medical Protective filed for a 39% increase. It wasn’t until after the new president of the Texas Medical Association, Bohn Allen; Dan Gattis, a Republican from Georgetown and vice chairman of the House Civil Practices Committee, (its “not a win for our doctors”); Dan Lambe of Texas Watch, (“Rates are higher, health care costs are up . . and the only beneficiaries are the special interests who bankrolled the campaign. …”); and others raised unmitigated hell, did premiums get reduced marginally. The appearance of reduction was helped by taking some of the coverage off the table with such things as “risk purchasing groups.” If you talk to Texas doctors, they will probably tell you their premiums went down all right, but so did their coverage. Be assured that the rates will rise once the furor is over.
Now the federal politicians have been persuaded by doctor, hospital and insurance groups to violate the equal protection and right to trial by jury provisions of the 7th and 14th Amendments to the United States Constitution by preempting what is left of rights of injured patients in favor of doctors and hospitals. That’s the bad news. The good news is that patient rights have been so devastated in Texas by state law; there isn’t really anything else that can be done to hurt a victim of medical negligence by federal pre-emption.
Trial by jury is the American right Thomas Jefferson held in higher esteem than the right to vote. It is a right that exists only if there is a sense of fairness for all who come to our courts to be heard. Courts resolving issues of human suffering must be given the power to grant justice for all individuals and not just for the powerful.
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