Friday, January 17, 2014

"Lottery Mentality"

It has been a while since I have had time to write a post.  However, I received interesting literature lately and this will be the first of, I think, a four part series of posts.

Today I will examine a Medscape article entitled, "Plaintiff's Attorneys Get Choosier; Lottery Mentality."  Essentially the article expresses the need for tort reform in order to limit awards and take a huge burden of the court system.

The article begins by noting that most states limit awards, such as "California's $250,000.00 lid on non-economic damages -- still the GOLD STANDARD for tort reform advocates."  The common denominator between states with limits is "an attempt by lawmakers to hold down the severity, or actual cost, of resolving malpractice claims."

Ah yes, the gold standard.  Nothing says justice for the injured more than limiting what an individual can get for his or her injuries.  And of course, the smaller the amount the better, hence the gold standard.  Nothing says "we are sorry and we do care about your injuries" than the smallest cap lawmakers can pass.  The gold standard.

Of course lawmakers, doctors and hospitals are concerned with the severity- the actual cost- of resolving malpractice claims.  Who cares about the severity of the injured individual.  That is of no concern to these lawmakers, the doctors or hospitals, or most importantly, the insurance companies.  The severity of how much they may have to pay for their malpractice is of the greatest, and only, concern.

The article goes on to discuss 2 key developments for the rise of monetary awards to injured people since 2006.  First is plaintiffs' attorneys pushing courts to award severely injured patients "outsized life-care plans" which of course provide these severely injured patients money to pay for their care they need for the malpractice.

Heaven forbid we plaintiffs' attorneys request money, a damage we can ask for, to help these injured individuals pay for the enormous cost of medical care the individual will need for the rest of their life.  Please, lawmakers, pass a law that no one can become a plaintiffs attorney as a profession.

Trust me, depending on the age of the injured individual, life care plans are expensive because a lot of care is required, and SHOCKER, health care costs in USA are ridiculously expensive, even though it does not need to be.

Second, the article states, is that "plaintiffs' attorneys now concentrate on high-severity cases driven by catastrophic injuries and the potential for large awards."  Yes, this is true.  However, that is only because lawmakers have imposed caps on noneconomic damages, and sometimes total damages, in order to prevent plaintiffs' attorneys from pursuing cases that are legitimate cases because the damages are not enough.  Meaning, it would cost a firm more to pursue a claim in expenses than the case is actually worth.  That way, doctors can feel free to screw up and commit malpractice, but as long as they don't injure an individual too bad, they will get away with it because it will cost a firm more money to pursue the claim than the actual claim is worth.  Way to go lawmakers!

The article also notes that 43% of claim above $5 million dollars are obstetric in nature.  The article is very concerned about this and exclaims there is a need to stop such outrageous awards.

Want to know why those claims/ damages are so high?  Because a child is injured at birth and needs to be cared for for the rest of the child's life.  Considering mortality tables now have people living into their 70's, 70 years is a lot of time for a child, most of whom are severely injured at birth, to have to pay for health care costs the child is only incurring because of a doctor's malpractice.  Think about all the costs a child with a brachial plexus (shoulder/arm injury caused by a physician during a vaginal delivery) or cerebral palsy (due to lack of oxygen that could have been avoided if C-section done when it should have been or improper diagnosis of a fetal hear strip which shows baby not getting enough oxygen in utero) will have to expend during a lifetime?  It is staggering.  However, of course, the article exclaims these "outrageous" awards need to be diminished, and lawmakers should actively pursue tort reform on these issues.

Lastly, the article, predictably, expresses the need for more tort reform.  One way is to introduce caps or more stringent caps on damages, noneconomic or total caps.  If there are not caps, according to Rep. Eric Burlison of Missouri, injured patients will see it as a lottery and lawsuits will explode!  This ignores the facts that (1) lawyers will not file frivolous lawsuits for a number of reasons, and (2) getting injured through malpractice does not equal the lottery.  No individual goes into surgery, or for that matter is born in which the child has absolutely no choice about, thinking "I hope I get severely injured so I can get money.  I don't want to walk again.  I don't need that left arm anymore.  I don't mind being paralyzed, unable to see or unable to ever have sex with my wife or partner again.  I don't care about having a quality of life.  Please injure me doctor so I can get some money!"  This though/ reasoning by lawmakers promoting tort reform is absolutely ridiculous and insulting to injured individuals.

Tort reform is also necessary, apparently, because medical malpractice cases take too much of a judges time while on the bench.  Really?  Judges spend too much time doing their job?  For shame.  Also, the reason medical malpractice cases take a lot of time is the need for experts and their testimony.  A case cannot be proved without expert testimony in a medical malpractice claim.  A lot goes into expert testimony, not to mention having the expert find time to be deposed or be at trial considering that experts also have their own medical practice to attend to.

The article concludes by saying that tort reform is needed in medical malpractice claims because it is a "burden" on the judicial system.  This is absolutely insulting to those that are injured through malpractice.  How is an individual seeking justice, the whole point of our judicial system, a burden on the courts? The only burden is on those poor insurance companies who may have to do what the exist to do- pay a claim.  God forbid an insurance company have to pay a claim, instead of just taking money from those who pay for insurance, which by they way, includes doctors and hospitals.

Tune in for more on these and other issues.  Up next time… Medscape's "Malpractice in America: Is Anything Getting Better?"