Medical Malpractice and Tort “Reform”

I’m riding my white horse today.

As a lawyer, I know that people get harmed through no fault of their own by other’s people’s negligence and failure to pay attention to what is important. Whether it’s a car accident, a doctor who ignores symptoms, or a vicious dog who attacks a child, the person who is hurt should not have to pay the price for the injury. The court system cannot give back the things these people have lost: time away from work which leads to the loss of their careers, the pretty face that existed before the dog mauled the four year old girl, the mother who was killed by a drunk driver, living without constant pain caused by the injuries in the accident, the cheerful contributions to her family that the coma patient used to make before the doctor ignored the pulmonary thrombosis that led to her vegetative state.

When lawyers screw up a case, clients want to sue them and recover their losses. And they should. They should also be able to sue doctors, negligent drivers, and other people whose failure to pay attention has hurt them.

Unfortunately, “tort reform” usually means “medical malpractice lawsuit reform.” People think that lawyers are mean to doctors, who are just doing their best to heal people who probably can’t be healed in the first place.

That is not the case.

Look at the statistics in a recent Huffington Post article. Only 2-3% of ALL medical malpractice results in a lawsuit. That’s not 2-3% of medical care cases; that’s 2-3% of actual malpractice situations. Is such a number of lawsuits really excessive?

Caps on punitive damages is the issue Obama is expected to embrace, though. Punitive damages don’t reimburse someone for money they are out. Compensatory damages cover that. Punitive damages are intended as punishment – hence, the name “punitive.”

Why would someone require punishment for a screw-up? Think about how we decide how and whether to punish our children for negligence. Let’s say that Susie and Jenny are at a birthday party for one of their classmates and it’s cake and ice cream time. Susie gets excited explaining something and throws her arms wide, knocking over Jenny’s glass of punch, spilling it on her and ruining her party dress. Of course, Susie has to apologize to Jenny, and she has to get Jenny another glass of punch. She has to help clean up the mess, and if Jenny’s party dress is expensive Susie’s mom might offer to pay for it to be cleaned. These actions are compensatory in nature. They compensate Jenny for the loss of her glass of punch, her clean and dry dress, and her hurt feelings.

If Susie knocks the punch over because she was dancing on the table, though, Susie will be punished. Punitive action will be taken to ensure she doesn’t dance on the table and spill someone’s punch again.

Maybe we put Susie in time-out. Maybe Susie gets a spanking. Maybe Susie is grounded from her Barbies, or she is not allowed to go to any parties for the next month.

The point is not that Susie is being punished for doing something intentionally. She did not. She did spill the punch while being grossly negligent, though. She should have known that if she danced on the table where Jenny’s punch sat, the punch would spill.

Punitive damages in these cases are intended to stop gross negligence. They are not appropriate where there is no gross negligence – where the punch spills accidentally due to something unforeseen or where the negligence was minor. Punitive damages are for those egregious cases where the doctor ignored clear warning signs of his patient’s impending doom and did nothing.

Punitive damages are not awarded lightly by any jury. If a jury awards an amount in the millions, it is because the defendant in those medical malpractice actions has the resources to pay such an amount, even if it hurts. Punishment is not intended to kill, and punitive damages that bankrupt a company or a doctor aren’t appropriate. Punitive damages are supposed to hurt, though – just like being grounded from birthday parties hurts. And just like Susie, the idea is that punitive damages will hurt for a little while, but the defendant will get over it – hopefully to go forth more carefully in the future.

I Just Solved All Our Problems

In response to the blog post of a friend who is understandably bemoaning the state of the nation, I got a wee bit windy.

I know, I know – it’s hard for anyone to believe that I – moi – would spew opinions unrestrained against the drums of ears attached to mouths that were asking rhetoricals, not practicals. Nevertheless, I have the answer, and if the president would only sit down and pay attention to me, all the country’s problems – yea, even all the world’s! – would be solved.

The economy is not going to be fixed overnight, and right now Obama is listening to the experts who advise throwing more money at the economy in all the wrong places – at least IMHO. But, in response to those who are nodding sagely, saying “We told you that Obama would bring socialism and liberalism to the country, but did you listen?  Nooooo,” I say that (ahem) this started on the Republican watch. Obama inherited this disaster; he did not create it. And since no one has ever dealt with such a staggering world-wide economic crisis before, that means he is inventing this wheel as he goes along.  Will he get it all right?  Of course not.  But he won’t be likely to get it all wrong, either.

From what I hear and read, the economy isn’t going to start upward on any consistent basis until at least next year, and maybe not until 2011. Whenever in history the economy has tanked as suddenly and as severely as it did last summer and fall, the recovery has always been slow. That’s why they call them “depressions.”

Consumer confidence is badly shaken, and as more and more jobs are lost and more and more foreclosure notices are mailed, it’s not as if Dick and Jane are suddenly going to decide to splurge on that vacation home, lavish gifts for their status-conscious kids, or a pricey new automobile. Their businesses aren’t going to be hell-bent to hire new employees, either, because if sales are down, and no one is getting the services they offer, the employers simply can’t justify it.

The economy is, believe it or not, depressed.  And Economic Abilify has not yet been invented.

My opinion (and one or two of you might possibly be aware that I have one or two opinions, even though I rarely mention them in polite company) is that Obama would be better off to give stimulus money to the people and entities that are best in a position to turn this thing around, i.e., all of us, but in different ways.

Money should go to the homeowners trying to stave off foreclosure as a condition of and part of the debt renegotiation with the lenders – that way the lenders get paid directly by the government on behalf of the homeowners, the homeowners and their children aren’t sleeping on the streets, and the banks don’t own homes they can’t sell.

If a home is undervalued for the debt the homeowner has against it, the government should pay the difference as soon as new terms for the remainder are worked out between the borrower and the lender. If the borrower can’t afford to continue making the original payments – not the juiced-up interest payments – then there can be a second tier of incentives for the lenders to extend the debts to a 40 year amortization as opposed to the customary 30 year schedule.

And NO MORE INTEREST-ONLY long term debt!  Whose idiotic notion was that, anyway?  “Here, Joe Bob and Sally Sue, take this money that you never have to pay back. Just pay us interest and we’ll all be happy.”  The hell, they say! Morons.

Next, apply stimulus funds to the remaking of the American infrastructure, especially rural and smaller urban areas without reasonable public transit. Make light rail, high speed rail, and buses reach more places and serve more people on better schedules. One of the worst things we ever did was allow our railroads to be dismantled in favor of three cars in every driveway and five lanes on every freeway. Refurbishing and improving our infrastructure will employ hundreds of thousands of people in various positions throughout the country. From engineers to draftsmen to laborers to porters, we can get this country moving at a much more economical rate, and faster, if we’ll commit the funds to do it. And those jobs won’t go away when the projects are complete – they will need to be maintained, too.

Simultaneously, pour money into scientific research and development of alternative energy as well as into to cleaning up and maintain the environment. I’m not talking about just reducing greenhouse gases, although that is certainly a big concern, but (for example) about making reasonable accommodations for heavy metals that are the by-product of mining and drilling. A rocket laden with nuclear waste, arsenic, mercury and lead headed for the dark side of the moon might not be a bad use of NASA’s funding.

Put people to work cleaning up the environmental damage we’ve done to the planet, and making sure we’ve still got a planet to leave to our great-grandchildren. Clean water, clean air, and fewer chemicals artificially enhancing the soil and crops will go a long way toward making us all healthier – not to mention the possibility that our grandchildren might be able to play with frogs in their back yards some day.

And while we’re at it, quit giving chickens and cows all those damn hormones!  I have yet to meet a teenage girl whose double-D’s don’t put my paltry gifts to shame.  Why are their adolescent mammaries the size of a Holstein’s udders? Hormones!

Reduce the employer’s share of employment taxes. With the matching amounts that employers pay for health insurance, medicaid, unemployment, and social security, the cost of hiring an employee is a lot more than just what the employee sees in his check. This would be a real, dollar amount of savings for employers and would probably allow businesses to hire more workers across the board and at all levels.

Nationalized health care? Bring it on. Insurance companies will always provide coverage to people who choose to pay more for less care.  Those of us who have survived cancer (twice, thankyouverymuch) or who are on certain costly medications can’t get health insurance without staggering pre-existing conditions clauses that make our health insurance worthless and excruciatingly expensive – if we can get it at all.

When health insurance benefits dictate whether a parent can open a business of his or her own or must stay with an employer who provides health coverage the family can’t get elsewhere, entrepreneurialism is stifled. This country is dependent on small business and entrepreneurs. We absolutely must break down the barriers that prevent people from making an attempt to achieve their dreams. I don’t know about you, but I work a lot harder for myself than I do for someone else. I don’t think failed businesses should be propped up by the government (Detroit, are you listening?), but when something like paying for childbirth determines whether a family can start a small business, there’s something desperately wrong.

Where, O Where will the money come from to do all this?

(clearing my throat)

The same place the last two trillion dollars came from.  And the next trillion will actually make a difference. It will put people to work, shore up the foundation of the country, and stabilize the economy. It will also have the added benefit of making the world a better place.  And if any of you out there are thinking there won’t be more stimulus money forthcoming, you just hide and watch. It’ll come, I promise, whether the president takes my incontrovertible advice or not.

Now that I have solved the problems of the environment, the economy, health care, and reliance on fossil fuels, are there any other problems you’d like me to take a look at?  My rates are reasonable, and I’m in a spewing mood.