Thursday, November 4, 2010

The Real Effects Of Medical "Tort Reform"

One of my favorite legal bloggers is Justinian Lane, who passionately writes about our civil justice system. One of his blogs is "TortDeform," which exposes the folly of the tort reform movement, and its true goal: to make it so hard to bring legitimate lawsuits against big business, insurance companies, and the medical industry, that ordinary individuals say "to hell with it," and give up. All to the benefit of these well heeled interest groups.

There's lots of data to support the idea that legal tort reform will do nothing to help our economy and create jobs (a tirelessly repeated canard of that movement) or bring down the cost of health care in America. But largely this falls on deaf ears. The tort reform movement is not about "data" or "facts." It is, at the end of the day, an orchestrated, well crafted perception: that we are awash in "frivolous lawsuits" that exact increased costs on all of us. It is a perception fueled by a multibillion dollar propaganda machine that parades random, goofball lawsuits as "Exhibit A" for what's wrong with our legal system.

Frequently lost in the tug and pull of perception versus facts/data is the human side of this debate, and how tort reform actually affects real people with legitimate, non-frivolous cases. These are the folks left on the side of the road (or better yet the ditch) in this one sided debate. Sometimes their words are more illuminating than "position papers" or the latest cooked data from The Chamber Of Commerce or the insurance industry. Recently, TortDeform posted a testimonial from a Texas malpractice victim. Ohio has passed similar "malpractice reform" laws, so the writer/victim's observations are particularly salient to what is currently happening in Ohio. The testimonial was so moving that I am reposting it here:

I have read some of the things on Tortdeform and would like to share our medical malpractice experience. My hope is that others will share their experiences. Perhaps, if enough experiences are shared, we can change public perception. Currently, that perception is that many are getting rich making frivolous medical malpractice claims, that juries give away huge amounts of money for the slightest thing, that this has a big impact on our medical insurance cost, and that it drives medical malpractice insurance so high that doctors go out of business. This perception fuels a cry for tort reform and is taken up by our politicians. The most common “fix” is to limit damages awarded. While this sounds good in theory, did you ever think what happens to someone who is actually a medical victim in this “reform” environment? The following is our “story”.

We live in Texas, which is touted as the "model" of tort reform for medical malpractice. My wife and I had planned our “dream” vacation. Before we left, she wanted to get a procedure (which she has had several times before) done on her spine to alleviate pain. Unfortunately the doctor messed up and she was left paralyzed on one side. She had additional complications which left her in constant pain, unable to walk without a walker, and then only a minimal amount. It is difficult for her to function and I prepare her food, bathe her, dress her, fix her hair, etc. Our life has totally changed.

When we explain what happened to our friends, one of their first responses is, “I guess you’ve sued and gotten a big award”? It seems so obvious to them. However, it’s not so easy. Our first issue was to find a lawyer. Expenses will be $50,000 - $250,000 to try the case. If the lawyer loses, this money comes out of his pocket. In 75% of the cases that go to trial, the doctor wins. So the lawyer’s not taking the case, unless he is very confident of winning. Second, there must be written expert opinion, from doctors in the same field as the plaintiff, who will testify to the malpractice – before the case can even get on the docket. So much for “frivolous” lawsuits!

We have already spent $45,000 out of our pocket (beyond what medical insurance covers). I estimate that over my wife’s lifetime we will need $1,000,000 to $1,250,000 to cover extra expenses. Experts in our case tell me that my estimate is low – it could well be double this. The lawyer’s fee is 40% of gross recovery plus expenses (and interest on those expenses).

As we proceed with the case, we are confronted with additional sobering facts. Today, doctors attend classes to learn how to shelter their assets (trusts, etc). Even if we do go to trial and win that two-million dollar award, the doctor’s assets are sheltered, he will declare bankruptcy, and the most we will get is the limit on his malpractice insurance - $750,000. In addition, medical insurance companies (and Medicare) have a little clause in their policy called subrogation. This means that if you recover money in a case, they will expect you to pay back (out of your recovery) all the money they paid for hospital bills, rehab, etc. Their first requests to us were for upwards of $300,000.

We are told we are pretty lucky. Following negotiation with the medical insurance company, and after lawyer fees and expenses, we stand to recover about $250,000. Still the feeling is bittersweet. This totally ignores the constant pain and suffering my wife experiences, her inability to function normally, and the likelihood that she will spend her last years in a nursing home when I am too old to care for her. Nor does it deal with the change in quality of life I have as a caretaker. I have no idea how we will meet the mounting financial strain - $250,000 is 12-25% of what we will need.

We feel we have been victimized twice - the first as a medical victim, the second by the judicial “tort reform” system. My lawyer says that our story is common place – in fact there are many worse than ours. To add injury to insult, I am told that we will be required to sign an agreement that we will not reveal facts of our case to the media. Again, an attempt to keep the real truth hidden from the public. While I have not yet signed such an agreement, I have kept names and details out of our story to protect everyone involved.

Again, I implore others to share their story in Tortdeform (without violating any legal agreements). If sufficient “stories” are revealed, perhaps public opinion will side with the victim, and more appropriate “tort reform” can occur.

Keep up the good work, Justinian...

No comments: