Medical Malpractice Tort Reform Opponents Make For Strange Bedfellows

Congress is currently debating (again, for the umpteenth time) a bill that would "federalize" medical malpractice law and impose a one size fits all cap of $250,000 for patients who are injured or maimed due to a physician's or hospital's negligence. We trial lawyers have always opposed caps because they shred the 7th Amendment of The U.S. Constitution's right to trial by jury by stripping the jury's right to determine malpractice victims' damages and losses on a case by case basis. What's more, they violate an injured patient's right to due process of law under the 14th Amendment.

But these stalwarts of The Constitution are mere "technicalities" for most Republicans pushing for the bill at the bidding of the medical and insurance industry and The Chamber Of Commerce (most Democrats oppose it). These pols and their lobbying groups apparently liken The Constitution to a trip to the buffet, where they are free to "pick" the constitutional entrees they like, i.e. the 2nd Amendment right to bear arms (think steak or prime rib) and bypass some of those nasty side dishes like trial by jury and due process (think lima beans, or the cottage cheese at the salad station that you discover was inadvertantly infused with purple beet juice--ick).

That's why it was suprising and somewhat refreshing to learn that many conservatives are vehemently opposing this legislation. Who might you ask? No other than many Tea Party groups and The Heritage Foundation.

This from The Heritage Foundation:

The problem with most of the proposed reforms in H.R. 5 is that the law governing medical malpractice claims is a state issue, not a federal issue. Despite H.R. 5's reliance on the Commerce Clause, Congress has no business (and no authority under the Constitution) telling states what the rules should be governing medical malpractice claims.

And this from the Tea Party Nation founder Judson Phillips:

The 10th Amendment means what it says. It is not a campaign slogan that we throw out when it is convenient and ignore the rest of the time. The 10th Amendment is one of the best defenses we have against tyranny.

We supported Republicans in 2010 because we believed them. We did not elect them because we thought they were hypocrites.

We in the Tea Party do not insist in ideological purity but we insist that the candidates we support, support the Constitution. That means all of it.

Not just the parts we find convenient.

Almost three years ago I argued that any attempt to nationalize medical malpractice laws not only wouldn't lower health care costs, but was blatant socialism.

I'm pretty sure that socialism and "a la carte constitutionalism" are ideas these conservative groups could probably relate to. They deserve credit for pointing out the incongruity of the mixed message of rejecting ObamaCare and "federalizing" malpractice laws at the same time.

Unnecessary Prostate Removal Surgery Proves The Folly Of "Evidence Based Medicine" Malpractice Immunity

"Evidence based medicine" is the newest shiny object on the mantle of the medical/insurance industry's never ending lobbying effort to eventually kill all medical malpractice lawsuits in this country. The premise: if doctors follow recognized guidelines or protocols in treating a patient, they should be immune from a lawsuit if the patient suffers medical harm.

Like other tort reform buzzwords such as "defensive medicine," it passes the "bumper sticker worthy" test, meaning it is overly simplistic and can be repeated over and over for maximum effect with an unsuspecting public and friendly lawmakers. But just how does "evidence based medicine immunity" square with the poor guy who had cancer surgery to remove his prostate when it turned out he didn't have cancer after all because his biopsy results got switched with another patient's?

This case was so secretive that the patient's name, the clinic, the lab, the doctors, and even the venue (the location where the malpractice and lawsuit took place) were confidential. But here's what happened to poor "George" as we'll call him.

After having a biopsy at a clinic to confirm or rule out prostate cancer, George's sample was sent to a pathology lab. Here's what happened after that:

The lab then determined the patient had prostate cancer and the patient underwent a robotic prostatectomy. But a sample taken from him after surgery showed he had no cancer at all. It was discovered that the original tissue sample had been switched with that of another patient who thought he was cancer-free. Exactly how the switch took place, however, was never cleared up.

After he sued both the clinic and the lab for wrongfully removing his prostate, things got more interesting in the lawsuit:

...both the clinic and the lab denied responsibility for the error. A nurse at the clinic insisted she labeled the sample correctly and followed protocol to make sure the requisition form matched the specimen. The pathologist at the lab reported matching the name on the requisition form with the name on the specimen, and lab technicians and pathologists followed all protocols during analysis.

Therein lies the problem with an "evidence based medicine" defense. How can everybody in the medical chain be following all protocols and this poor guy has unnecessary surgery for a non-cancerous prostate gland that's been removed as a result?

Evidence based medicine isn't so black and white after all when real world medical errors like this happen. At the end of the day, "best practices" and "protocols" are nothing more than aspirational pieces of paper. They're not worth squat if the team can't execute the playbook, and it's even worse when medical providers swear under oath that they followed the playbook, even in the face of an obvious medical mistake proving otherwise.

What Does "100/300,000" Auto Coverage Mean?

Not what you think it probably means. In fact, it is kind of misleading.

1. 100/300 Liability Coverage

This means your policy will pay up to $100,000 to ANY ONE PERSON who you injure in a collision that is your fault. If you seriously injure that person and he or she has a claim for injuries greater than $100,000 (say $300,000 for example), your liability insurance coverage will only pay $100,000. You're on the hook out of your pocketbook and assets for the remaining $200,000. So much for the "300" part. Your policy looks a bit thin now.

When does the "$300,000" part kick in? If you negligently injure more than one person in the same car accident. Example: your driving negligence injures 3 occupants. Assume that:

Occupant No 1 has a claim for $300,000;

Occupant No. 2 has a claim for $100,000;

Occupant No. 3 has a claim for $50,000


Result? The most your insurance company will pay TOTAL is $300,000. Occupant No 1 will probably not get all $300,000, and as a result, occupants 2 and 3 may not receive the total value of their claims either. They may all have to share "pro rata" or proportionally in the division of the $300,000 total proceeds available.
Again, so much for your policy protecting you. Your personal assets are exposed in this example too since the total of all occupants' claims ($450,000) exceeds your liability insurance limits by $150,000.

2. 100/300 Uninsured and Underinsured (UM/UIM) Motorists' Coverage

This is the MOST IMPORTANT PART OF YOUR INSURANCE POLICY. Why? Because it protects YOU AND YOUR FAMILY if an uninsured driver (he's got no insurance) or an underinsured driver (he's got minimal or low liability limits) creams you in a crash. Yet, the same "sleight of hand" rules apply.

The $100,000 portion of your UM/UIM is the most your insurance company will pay to any one person insured under your policy. If you're injured by an uninsured drunk driver and have a claim worth $200,000, your insurance company owes you $100,000. By purchasing this coverage, you only get %50 of what your claim is worth.

The $300,000 portion of your coverage? Your getting the picture here, right? You got it: it's the most your company will pay no matter how many family members are injured. If some underinsured driver goes left of center and seriously injures all four members of your family, the most they will pay is $300,000 total, and no more than $100,000 to any individual family member.

When this coverage is fully explained, it's easy to see why "100/300" coverage is so lousy. Yet, we continue to see this coverage over and over, whether it's the negligent driver who injures our clients, or our clients with their own policies.

Although "100/300" coverage is fairly common, it has become outdated like the mullet, untied high top basketball shoes, Lover Boy (which I never listened to by the way) and Members Only jackets (I confess to briefly owning one of these). In any serious crash, a standard $100,000 recovery can be quickly eaten away your health insurance company's "subrogation" rights. If your health insurance company paid $70,000 for your medical bills, in some instances it can get every penny back.

Unfortunately, most agents don't realize this when they convince you to buy a "standard" 100/300 policy. And you don't realize any of this stuff until it's too late.

Hey insurance agents: 1982 is calling. It wants its "100/300" policy back.