Tort Reform – Its all about money, but not a great deal of substance

Frivolous lawsuits; increased cost of “defensive medicine”; “runaway juries”; insurance availability and increased cost; and a general fear of lawsuits.

What are the above? They are all reasons given by insurance companies, hospitals, doctors and conservative legislators for what is wrong with the civil justice system. They are reasons used to justify taking away the legal rights of citizens in favor of institutions who have more political and financial power than do those who they injure.

Let’s take them one at a time.

Frivolous lawsuits: Myth. For decades the cost of preparing a medical negligence lawsuit, paying experts and waiting years to get to trial has eliminated whatever small numbers of this mythical beast that may have existed. With the contingent fee came lawyers risking their own money, sometimes hundreds of thousands of dollars, on the outcome of medical negligence cases. There is no study or other objective evidence to support this myth.

Increased cost of “defensive medicine”: Myth. Tort reformers have beat the drum for years about the unnecessary increase in medical care costs because of this practice. They claim millions of dollars are wasted each year in doctors ordering unnecessary tests to cover themselves. Extensive research has been done demonstrates that the fear of malpractice suits has little or nothing to do with the alleged practice of “defensive medicine”.  The Robert Wood Johnson Foundation, the Congressional Budget Office and the Government Accountability Office have all demonstrated that tort reform has little or no influence on defensive medicine.  In fact, defensive medicine has been claimed by some to be nothing more than a way to line the pockets of greedy hospitals and physicians. I prefer to look at it as the practice of cautious medicine and when my doctor orders a test that may not be absolutely necessary to eliminate a gut feeling she may have, well thanks doctor for caring enough to go the extra mile.

Runaway juries: Again, myth. People love to point at the famous “McDonald’s Coffee” case as the poster child for runaway juries and frivolous lawsuits. If you have not seen the facts in Hot Coffee – The Movie, well I am tired of reciting them. No one who has conducted the studies or who is familiar with the civil justice system—and is honest—believes in the runaway jury except as in the rarest of anomalies. But, A jury in New York recently returned a $130 million verdict in a negligent birth case and that HAS to be a runaway jury, right? Let’s look at it. The case is Reilly v. St. Charles Hospital and involved the birth of Shannon Reilly in 2002. The plaintiff proved and the jury agreed that St. Charles Hospital:

• Failed to properly monitor the pregnant mother.
• Failed to properly monitor the unborn fetus.
• Failed to identify and appreciate important signs the baby was in distress.
• Failed to take corrective action.

The errors were obvious, preventable and egregious. They left Shannon Reilly in a medical state in which her body is so damaged it can effectively not function, but she has a brain that functions at a normal intelligence. Shannon Reilly sits every day, a prisoner in her own body, without using her damaged body while she can appreciate what she has lost fully with a normal mind. It will cost untold millions to care for Shannon and she probably will have a near normal life expectancy.

It is seldom that I meet anyone who makes claims about “runaway juries” who can actually tell me about the case they claim constituted a “runaway jury” and when they think they can, research usually demonstrates a case like the “Hot Coffee” case. When you ignore all the hyperbole, misinformation and, sometimes, outright lies, you find a case in which the jury’s verdict can be objectively explained and substantiated.

General fear of lawsuits: Not a myth and a very healthy state of affairs. A healthy fear of lawsuits makes people more careful; corporations a little more safety conscious; and manufacturers a little less “Pinto sensitive”.

The example of anesthesiologists is a good one for why being sensitive to lawsuits and then taking action to increase safety and reduce the incidence of negligence leads to profitability:

“In 1982, after a spate of bad publicity triggered by large malpractice verdicts — several won by Moore — the American Society of Anesthesiologists conducted a comprehensive assessment of what had been injuring patients. They then revamped their procedures, established mandatory monitoring, improved training, limited the number of hours anesthesiologists could work without rest, redesigned machines and outfitted others with safety devices.

Within 10 years, the mortality rate from anesthesia dropped to 1 in 200,000 administrations. And anesthesiologists’ malpractice insurance rates fell to among the lowest of any specialty.” (Bloomberg)

Patient safety should be a very serious concern in the U.S. Each year, hospitals see 100,000 to 1 million avoidable deaths — and a far greater number of serious injuries. How many more $130 million verdicts will it take before all specialties take action?