Mothers and Medical Malpractice – Part Three

Part One | Part Two | Part Three

Part Three

By: Jean Johnson for Body1

According to the Fedgazette the median award in medical malpractice cases that went to trial was $425,000 in 2001. The figure was based on data gathered from the nation’s 75 largest counties and reported in the Civil Justice Survey of State Courts. That said, most medical malpractice cases are settled out of court for considerably less, and finding an attorney to take any malpractice case can be difficult since the cost of putting together an argument can often exceed figures plaintiffs can realistically expect to be awarded.

The question currently being debated across the country is whether the $425,000 figure is out of line. According to the Bush Administration, the American Medical Association (AMA), and insurance companies, there is a clear and present crisis – so much so that President Bush has tried to move a bill through Congress that would place caps limiting jury awards in medical malpractice cases.

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Tips to work with your physician to minimize problems: Consider yourself a partner in your own treatment. Prepare for your appointments and keep track of and report on any changes in your health status. Ask questions and be sure to get answers that you can understand. If your doctor says something that confuses you, don’t be afraid to re-ask your question. Know that it’s OK to seek second opinions. Most insurance companies cover this cost, and reasonable physicians understand that this is a prudent thing to do. Do remind your physician of your allergies before accepting a prescription. Above all, understand that medicine is not an exact science and that physicians are human beings that make mistakes. Remaining vigilant is not disrespectful; it’s a smart way to do business.

The president has been unsuccessful so far. Most recently in May 2006 the Senate rejected two separate bills designed to limit damages for pain and suffering to $250,000 (or $750,000 when more than one hospital or medical facility is involved).

[Recapping from Part Two of this series: medical malpractice cases result in two types of damages – economic and non-economic. Economic damages are easily quantifiable in terms of lost wages and medical bills, but it is in the non-economic area where more abstract issues like pain and suffering and loss of companionship figure in – and hence where the controversy currently boils.]

Expectedly Senator Edward M. Kennedy (D-Mass.) objected to the president’s agenda. “The Bush Administration talks about deterring frivolous [malpractice] cases, but caps by their nature apply only to the most serious cases which have been proven in court,” the LA Times reports Kennedy saying. “It is absurd to suggest that $250,000 is fair compensation for a person paralyzed for life.”

LA Times analysis also noted that the Senate vote came “as broader debate over malpractice appears to be shifting away from limits on jury awards to other sorts of reforms, mainly alternatives to litigation.” Two areas in particular are getting attention, according to the newspaper. “These include state-sponsored programs that encourage doctors and hospitals to promptly own up to mistakes, apologize, offer restitution and make corrections to safeguard future patients.” [See Part One of this series for how the physician responsible for the death of Helen Jean Brown’s late mother acted in this manner by calling her immediately on her mother’s death, apologizing and promising to redouble his efforts – although not offering restitution.]

“Also,” the LA Times analysis of the national debate on medical malpractice damages added, “some are calling for the creation of specialized administrative courts in which a judge with expertise in medical matters, not a jury, would hear cases and decide on compensation from a predetermined table of damages.”

Said Brown, “I can see how jury awards might possibly exceed appropriate amounts since my experience is that there is antipathy in the general population toward the medical community and physicians. It seems to be a reaction to what is perceived as an elitist establishment and system that tends to alienate people. So it makes sense that when something goes wrong, a jury might want to strike back at the powerful few who they thought from the beginning flaunted their positions of authority over patients.”

Brown also thinks that a predetermined table of damages – if indeed such a thing could be arrived at – would take much of the mystery out of the process. “You are in the dark on these things. It is uncomfortable because you go from being dependent on the medical community to being dependent on the legal world – both of which are fairly closed to the lay population,” she said.

“They have their jargon that we don’t speak, and they hold their cards close to their chest. Even finding out what might be reasonable damages in my mother’s case is beyond me. I don’t know where to look, and anyone I’ve spoken to seems clueless,” Brown said. “So you’re left without much information other than what you can pick up sifting through newspapers. You have to hope you can find a good lawyer who will do right by you. I think we’ve found someone that’s OK to help us, but it’s hard to keep the faith after what we’ve just been through with my mother’s physician – a basically nice man that we thought we could trust to be careful and treat us well.”

In its coverage of this topic the LA Times also consulted William M. Sage, a Columbia University law professor who has a medical degree, “There are really two different debates about malpractice,” Sage said. “This persistent debate over caps is really a debate over personal injury lawyers, and whether what they do is good or bad for America.”

Indeed, the Association of Trial Lawyers of America worked vigilantly to oppose the Senate bills that would have capped damages, and the group is definitely at odds with the president on this – an issue that the LA Times pegs as “one of President Bush’s most sought-after domestic policy objectives.”

“I am disappointed that the Senate has yet again failed to pass real medical liability reform legislation,” President Bush said in a statement. “This is a national problem that deserves a national solution. I have called on Congress to pass responsible medical liability reforms, and the House of Representatives has acted. It is time for the Senate to put the needs of the American people ahead of the interests of the trial lawyers.”

The states as well as are moving on medical malpractice caps. According to an October 2005 report by the AMA, 24 states had caps in place on non-economic damages. The arena, though, is not a static one, and by March 2006, the Supreme Court had struck down a Wisconsin law that had capped non-economic damages the state voted to support in 1995.

As reported by the Fedgazette, “the court concluded that the cap violated the equal protection clause of the Wisconsin Constitution because it deprived full compensation to victims with valid and substantial claims.”

Confused? Inspired to get more involved in politics?

All of a sudden when constitutional law starts to relate to how well we are treated when something goes wrong at the doctor’s office, we tend to wish we’d paid more attention back in our political science classes – or this time really and truly make a commitment to get down to our party headquarters and see about how we can participate in our democracy.

In the meantime, a few last words on caps and medical malpractice from the Fedgazette. For starters the publication says that the AMA and the Association of Trial Lawyers of America are at odds on the data.

On the one hand, the AMA says that because of what it terms a crisis in medical malpractice, physicians are starting to practice defensive medicine and order extra tests and procedures to protect themselves from lawsuits. The AMA says this behavior is adding between $84 and $151 billion each year to annual health costs, amounts the association brands as unnecessary.

“Not so fast, says the Association of Trial Lawyers of America,” states the Fedgazette, “which offers information on each state. The organization rightly notes that medical malpractice filings have fallen in recent years and that legal damage awards have less impact on high medical costs that do medical errors.”

Helen Jean Brown seconds that. “I don’t know what the bill for my mother’s month of hospitalization is yet, but I imagine it is vastly more than the non-economic damages my attorney will be able to collect on our behalf. In my view, negligent physicians like the one that treated my mother should pay the medical costs along with making restitution to the patients and their families. That may sound harsh, but if you’d seen what my poor mother went through during the last month of her life… all because he didn’t check her allergy information before he wrote the prescription for the drug that killed her.

“Maybe if we could work more closely with our physicians – ask them questions until we really understand and really participate in the decision making. But it’s not that way. We don’t have the education and they are too busy to take time. So we’re stuck,” Brown said. “If we ask too much, we’re branded as interfering and meddling. And if we don’t ask, why – there we are. Not only did mom die at his hands, it took her a month to do it, and it was not a fun time.”

Last updated: 20-Sep-06