Texas has been the epicenter of so-called tort “reform” for decades, a land where an aggressive campaign on behalf of a corporate lobby bent on immunity from acts that cheat, maim, or kill has radically reshaped and deformed its civil justice system. The framers of the United States and Texas constitutions, who enshrined trial by jury as a fundamental right and believed in checks and balances, would not recognize the current Texas legal system, which perverts the rule of law into an instrument for the moneyed and powerful, as well as divorces it from any concept of justice.

The report says those who have seen their rights dangerously restricted include “patients, families, workers, homeowners, senior citizens, policyholders, and small business owners,” and says Perry’s reforms “have closed the courthouse door on many Texas families.”

The attacks on Texans’ rights began in 2003 with the implementation of a cap on compensation for non-economic damages caused by medical negligence, including such things as loss of mobility, loss of fertility, and loss of a parent or spouse. The fixed $250,000 cap is identical to what California has under its 1975 Medical Injury Compensation and Reform Act (or MICRA). The Texas Watch explanation of the impact of that cap fits California as well:

The noneconomic damages cap, which is not indexed to inflation and thus worth less each year, hits those without wages and economic damages particularly hard, making even the most clear-cut malpractice cases on behalf of the elderly, the young, the disabled, and stay-at-home parents financially impossible to pursue for many given the high cost of retaining medical experts, which comprise the bulk of litigation expenses. The merits of one’s case are far outweighed by their socioeconomic status. Under Texas law, the value of one’s life is essentially reduced to the value of their paycheck. You are what you make.

The report also details the consequences of the “loser pays” law the Texas legislature passed earlier this year, in which even Texans who have been harmed and win their cases could wind up paying:

…in the twisted reality of Texas jurisprudence, winners may actually be forced to pay under the arcane offer of settlement statute, which was bolstered in HB 274 to further tilt the scales against victims by potentially wiping out the entirety of a judgment awarded by a jury. In other words, a plaintiff could bring a valid claim, have a jury rule in their favor and award damages – only to be forced to pay the wrongdoer’s legal costs in the end, erasing their entire judgment in the process.

This is a tilted, one-way process where the defendant has the sole option of triggering this provision. It is intended to create even more risk for plaintiffs by forcing them to make a decision in the dark – before the extent of the defendant’s wrongdoing has been uncovered, a jury has been impaneled, or evidence has been presented. This introduces the prospect of additional financial harm if they refuse to accept hush money from the defendant in the form of a settlement offer. As a result, wrongdoers are able to forcibly purchase the silence of their victims, defeating public accountability and endangering other families in the process.

This type of fee-shifting is anathema to the open courts envisioned originally by our Founders and violates some of the deepest traditions in American law.

The report characterizes the “tort reform” efforts as offering “a false choice between jobs and justice” that has made the state “more dangerous for Texas families.”

–J.G. Preston

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The case before the court was Stinnett v. Tam, in which a jury found health care providers liable for the death of a young man and awarded his widow, Holly Stinnett, $6 million as compensation for loss of her spouse. Under MICRA, the jury’s award was reduced to $250,000, the maximum that can be awarded under the law for non-economic damages (such as loss of a spouse, loss of fertility, loss of mobility or severe disfigurement).

“Our argument was twofold,” said attorney Robert Peck of the Center for Constitutional Litigation in Washington, D.C., one of two attorneys who argued the case at the Court of Appeal on behalf of the plaintiff. “First, there is no longer a crisis affecting the medical malpractice insurance industry, as was alleged when the law was passed in 1975. The lack of a crisis no longer justifies a $250,000 cap on the most catastrophically injured individuals. And second, the right to jury trial means you get the benefit of the jury’s determination of damages. Any interference with that violates this inviolable right.”

In the trial court, the plaintiffs submitted an affidavit from former Missouri insurance commissioner Jay Angoff showing how California’s medical malpractice insurance industry is thriving, with high profits, record surpluses and a competitive marketplace. The trial court judge opined that the matter is one for the legislature to decide, not the courts.

But Peck argued that MICRA violates the equal protection clause of the state constitution by dividing a class of plaintiffs—people injured by medical negligence—and then discriminating against those who are catastrophically injured and thus do not get the full benefit awarded by a jury. Patients who suffer lesser injuries are not affected by the cap. Peck said the justification for the discrimination in 1975 was the malpractice “crisis,” a justification that was later upheld by the California Supreme Court, but he argued that if the crisis no longer exists, the discrimination cannot be allowed to continue.

“Equal protection means you have to have a rational basis for not treating groups equally,” Peck told the court. “We submit the rational basis for MICRA has evaporated.”

Attorney Daniel U. Smith

“Now, 36 years after MICRA was passed, times have changed,” said attorney Daniel U. Smith, who also argued the plaintiffs’ case before the Court of Appeal. “The conditions in the insurance market and in health care are completely different than they were in 1975. There is no crisis. Medical malpractice insurers are profitable. Mr. Angoff’s affidavit showed that by every measure their profits exceed the national average, and we showed that health care is not at all at risk. Doctors have their choice of malpractice insurance carriers, new carriers are moving into California to take advantage of this market, and premiums are declining. On that basis we suggested to the court that there is no rational basis for continuing discrimination against the most severely injured plaintiffs.”

“We’re not here to litigate whether there was a true crisis in the mid-1970s,” said Stewart Tabak, who represented Ms. Stinnett at trial. “But there is no evidence whatsoever—none—to suggest a crisis currently exists. And if there’s no crisis, there’s no rational basis to claim that MICRA has any life left in it. We have Proposition 103 [enacted in 1988] in place now to regulate malpractice insurance premiums and ensure insurance companies get a fair return and health care providers are not overcharged.”

Smith made the analogy during his argument before the court that MICRA is like a cast put on a broken leg. Just as a cast is used to help heal an injury, MICRA was used to help treat what was thought to be an insurance crisis. But once the leg heals, there’s no rational basis to keep the cast on, and Smith argued now that the crisis is over, there is no reason to keep MICRA.

The defense was represented at the Court of Appeal by Kenneth Pedroza, on behalf of the health care providers involved; Todd Chayett, on behalf of the California Medical Association, California Hospital Association and American Medical Association, among others; and Fred Hiestand, on behalf of the Civil Justice Association of California, the big-business-backed group that works to reduce citizen access to the courts.

“The arguments that were made by the other side were, one, this is really something for the legislature to do and no court has the authority; the court seemed to look down on that argument pretty much,” Peck said. “The second was that because of the way the evidence came in at trial on the current lack of a crisis, in the affidavit from Mr. Angoff that was submitted late in the process, maybe it’s necessary to have a full-fledged evidentiary hearing and do it differently.”

Pedroza said during his argument in court, “They [plaintiffs] argue it’s Proposition 103 that has kept malpractice insurance rates reasonable. We say, no, it’s MICRA that has kept rates reasonable….I don’t think this is an appropriate function of the court to determine who’s keeping rates stable.”

He went on to add, “Proposition 103 does nothing to control premium increases based on claims, it just guarantees insurers a fair rate of return. It won’t help doctors with premium increases after a $7 million case.”

Pedroza also said the analysis in the Angoff brief claiming medical malpractice insurers paid out too low a percentage of their premiums in claims did not take into account the cost of defending the cases.

“There are going to be good years and bad years [for insurance companies based on the amount paid in claims],” he told the court. “The point of MICRA is to provide stability, so companies can continue providing insurance and doctors can continue to practice….There continues to be a rational basis for MICRA.”

Chayett countered Smith’s cast analogy with an analogy of his own, saying enacting MICRA in response to an insurance crisis was more like a dam built in response to a flood. Remove the dam, he said, and the flood will come back. “We think we would revert to a medical malpractice crisis [without MICRA],” Chayett told the court. “We think there would be problems retaining physicians.”

Peck later referred to a California Medical Association report that cited the reason for doctors leaving the state as the penetration of managed care and noted there was nothing in that report about medical malpractice premiums.

Chayett pointed out the state Supreme Court’s 1985 ruling in Fein v. Permanent Medical Group that there was an insurance crisis that created a rational basis for MICRA. “Are we stuck with that forever?” asked Justice Dennis Cornell. “On that basis there would still be Japanese-Americans interned. Aren’t there constitutional issues that can be investigated by a trial court?”

The question was aimed at defense arguments that only the legislature has the power to change MICRA since it is a statute. Peck later pointed out that when the state of Texas implemented caps on damage awards to malpractice victims, it did so through an amendment to the state constitution granting the legislature the power to enact a cap.

In his final remarks, Peck said, “The [malpractice insurance] crisis doesn’t exist, therefore the rational basis [for MICRA] doesn’t exist. We think the court has full authority to declare MICRA unconstitutional based on changed circumstances.”

In addition to Justices Cornell, Justices Betty Dawson and Gene Gomes heard the case for the Court of Appeal and must issue a decision by mid-November. The justices, especially Justices Cornell and Dawson, extensively questioned all the attorneys who presented, and at the conclusion Justice Cornell said the case was “very well argued.” Cornell had started the proceedings by saying it is “an amazingly interesting case.”

–J.G. Preston

Here is a video report on this story:

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It’s hard to say what brings tears to Kathy Olsen’s eyes faster – talking about her son’s past, or the young man’s future.

Steven Olsen was a mischievous two year-old in 1992, the kind of kid happy to lead his 3-year-old sister into trouble on a regular basis. His response when mom put up a gate to keep the kids from climbing the stairs? No problem – Steven would turn a laundry basket into a step; up and over they’d go. And when dad blocked off the ladder to the backyard slide? Steven turned a tricycle into a step stool.

“He figured this all out,” she says. “He was really quite intelligent.”

That all changed in late February 1992, when a freak injury followed by a downward spiral of medical errors left the boy severely brain-damaged. This tragic series of events turned the Olsens into forceful advocates in the battle to roll back California’s medical malpractice caps, set in place by the watershed Medical Injury Compensation Reform Act of 1975. MICRA’s $250,000 cap on human suffering, the Olsens argue, led to an inadequate financial settlement and didn’t allow the family to fully hold accountable the people responsible for destroying their son’s life.

The Olsen’s ordeal began during a visit to a relative’s mountain cabin outside San Diego, where Steven tripped while running and fell face-first onto a sharp stick that penetrated deep into the right front part of his mouth, face and sinus cavity. Surgeons at Children’s Hospital of San Diego repaired the damage and took cultures to test for infections as a precaution, then sent the family home.

A few days later, Kathy and her husband, Scott Olsen, noticed that Steven was becoming lethargic. A fever spiked. The Olsens brought him back to the hospital. As the medical teams tried to figure out what was happening, the couple suggested the face-impalement may have caused additional problems and asked for a brain scan. The medical team rejected the request and  diagnosed meningitis, the first in a series of errors that eventually sent Steven into a two-week-long medically induced coma.

By the time the nightmare stabilized, Steven was severely brain-damaged from an undiagnosed and ruptured abscess inside his skull caused by the impalement. That unseen damage would have been discovered had the doctors heeded the Olsens’ request for a scan. And it likely would have been treated even sooner had the medical team checked the lab results on the cultures that had been taken during the first hospital visit.

Steven (right) with his brother and sister. © Consumer Attorneys of California

The fallout of that missed diagnosis of a treatable infection was horrific: The bright and creative problem-solving toddler was left severely brain-damaged, blind and incapable of all but the most basic tasks. As his parents look to the future, they fear for how his later years will play out, in part because MICRA had capped a jury verdict of $7.1 million in pain and suffering damages at $250,000.

The Olsens did receive $4.1 million in economic damages from the jury and a pre-trial settlement with some of the defendants. That total immediately shrank by a quarter for lawyers’ fees, and by another $115,000 for the expert witnesses who testified in the trial. Other expenses, including nursing care and a private school for the disabled that helped Steven regain some of his speech and coordination, also have accounted for more than $100,000 in costs.

Steven also receives $718 a month disability support from Social Security, which was cut in May from $908 a month. The Olsens say a conservator controls the money on Steven’s behalf, but they fear it will run out. “I don’t think his money will last as long as he will,” Kathy Olsen says, tears again streaming down her cheeks. Yet she also thinks her son is lucky that they’ve been able to advocate for him. “We’re survivors in a system that isn’t really set up to help somebody,” she says.

Most of the young man’s medical costs have been covered by health insurance through Scott Olsen’s job as an automotive technical writer, but he will soon age out of that coverage. They fear that once they pass on, responsibility for Steven’s care will ultimately fall to government programs rather than to the people most responsible for his condition – the medical team that made the critical and avoidable errors when the boy was two.

Steven’s medical problems have transformed the Olsen’s family life. When he was injured, the family had four pre-teen children living and sharing bedrooms in a two-story house in suburban San Diego. Kathy Olsen quit her career as a store manager for Sears to become Steven’s primary care-giver rather than hiring aides to cover the hours when she otherwise would be working. Scott Olsen believes his career as a technical writer has suffered because of his repeated and extended absences during Steven’s many medical crises – including 23 surgeries.

Steven's mother Kathy became his primary caregiver. Photo by Lori Shepler © Consumer Attorneys of California

“Everyone’s been good,” he says, adding that he has appreciated the support and understanding from bosses and co-workers. “But it doesn’t help when they ask, ‘Can everyone come in tomorrow?’ and I say I can’t because my kid’s in the hospital.”

The Olsens had to move from their two story home into a nearby ranch house because Steven could no longer navigate the stairs he used to scramble up like a monkey. They also needed more room – because of the constant need for care, Steven could no longer  share a room with a sibling. Through the conservatorship, Steven owns half of the house, which underwent renovations to make it easier for him to maneuver, and to add a full access bathroom off his bedroom.

Out back, the yard has a play set and a swimming pool where Steven, despite having limited control of his motion (the brain injury caused cerebral palsy), likes to swim, and gets regular exercise. Steven’s a generally happy young man despite his disabilities, though he has trouble sometimes controlling emotions and impulses because of the areas of the brain that have been damaged. At the start of the interview for this story, he said he was interested in talking but after insisting on showing me his bedroom and how his favorite toys worked (we walked down the hall together, Steven kissing my shoulder most of the way until his mother persuaded him to stop) he decided he no longer wanted to talk.

Steven requires near-constant supervision after his accident. Photo by Lori Shepler © Consumer Attorneys of California

He requires near-constant supervision, and help. He can tend to most of his bathroom needs during the day but has to be diapered at night. For his own safety, his room – outfitted like a young boy’s – has a locking door with an alarm in his parents’ bedroom to keep him from wandering around at night. Leg braces help him stand and he has limited abilities to use a cane for walking around.

A circle of friends and relatives have pitched in to give the Olsens some time for themselves (a cousin stayed with Steven during the interview), but caring for their son has become the focal point of their lives. Steven has regular preventive appointments with a pediatrician, a neurologist/neurosurgeon, an orthopedic surgeon, an ear/nose/throat specialist, schedules that pick up when he encounters unexpected  problems. A physical therapist the couple pays for privately visits the house three or four times a week to help keep Steven’s limbs, over which he has limited control, as functional as possible.

“He is highly maintained,” Kathy Olsen says. “We go every six months. I don’t want anything else to happen to him.”

Yet Steven is not coddled. “He needs to know what he can do for himself,” the mother says. “Getting in our van, I put his foot there and say, ‘Now, plant your foot and get your butt up on that seat.’ He has learned what I think are some of the independent skills that he has to learn. He has to function.”

The Olsens’ experience with the legal system, and their frustration with the MICRA cap, turned them into reluctant activists. They have taken part in rallies, spoken at conferences on the issue and testified before Congress on how the MICRA cap has affected their lives. They are particularly galled by pronouncements and political spin by proponent of the caps.

The Olsens have been active fighting MICRA.© Consumer Attorneys of California

“We probably wouldn’t have done anything, but then we kept hearing from insurance companies and the other side about how this cap is helpful to people like us,” Scott Olsen says. “If they would have just shut up, we probably would never have done anything.”

The Olsens are particularly irked by the Californians Aligned for Patient Protection (CAPP) group, which is supported by doctors, hospitals and other medical care providers, and whose board of directors is composed of leaders of for-profit medical groups.

“They don’t protect patients at all,” Scott Olsen says. “Their whole premise seems to be that this is helpful to the person that’s been injured by malpractice.  They can collect the award faster, they settle much quicker. This isn’t right. If they would just say, ‘We don’t want to pay for it,’ that’s fine. Just be honest about it.”

The couple also occasionally fields calls from people who have been similarly affected by medical malpractice, but – particularly those involving the death of a child – can’t find lawyers to take on the cases because the cost of going to trial exceeds the possible judgment.

“Unfortunately, if you kill a child, there’s no economic damages,” Scott Olsen says. “Or it’s someone with no income that it happens to.” The MICRA cap, the couple says, effectively bars those families from seeking redress through the courts.

Scott Olsen says dismissive attitudes by defenders of the caps also galvanized them. He cites a comment by then-U.S. Rep. Christopher Cox (R-Newport Beach) in the mid-1990s that referred to pain-and suffering awards as “feelings” damages. “That,” Olsen says as his now-adult son struggles nearby to eat lunch without help, “just set me off.”

California’s MICRA law has been used as a blueprint for similar laws in other states, and in pushes for federal legislation – efforts that also brought the Olsens to witness chairs in legislative hearings, and rallies fighting the measures. They’ve appeared on national television talk shows and news programs, from the old “Phil Donahue Show” to NBC’s “Today” show. They also are active with Consumer Watchdog (Kathy Olsen sits on the board) and the Center for Justice and Democracy, and have worked on projects with the Consumer Attorneys of California.

“There were so many things that were not right that you have to do what you can,” Kathy Olsen says, arguing that the issue is not a face-off between doctors and lawyers, but between insurance companies and doctors and their patients. She sees the MICRA cap as part of the broad power the insurance companies have amassed, which now extends to dictating to doctors how they treat patients.

For all the broad policy elements of medical malpractice caps, the full impact is on the micro level. Over the course of a nearly two-hour interview, the Olsens’ dug into two decades of memories to detail the dizzying litany of treatments, complications and medical crises that their son has endured due to the medical negligence of his doctors. Finally, memory spent, Kathy Olsen went off to the family computer to print out a list.

She returned a few minutes later with four stapled sheets holding 56 separate entries listing all of Steven’s serious medical encounters, from the first emergency room visit through November 2009, the last time she had updated it.

“People who are 21,” she says, “shouldn’t have a medical history like this.”

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It turns out limiting damage awards to injured patients (or their survivors) isn’t the only way to reduce payouts; it’s certainly not the best one, since it’s patently unfair to, among others, children, the elderly, stay-at-home parents and people with low-to-moderate incomes. But a surefire way to reduce the amount of money paid to malpractice victims is to reduce the amount of malpractice.

Dr. Amos Grünebaum

That’s what New York Presbyterian/Weill Cornell Medical Center set out to do in 2002 in its obstetrics department — with astounding results. Writing in the February 2011 issue of the American Journal of Obstetrics & Gynecology, Drs. Amos Grünebaum, Frank Chervenak and Daniel Skupski described how average annual malpractice expenses (payouts plus cost of defense) dropped 90 percent after new practices were implemented. And the number of “sentinel events,” such as avoidable maternal deaths and serious newborn injuries, went from five in 2000 to zero in both 2008 and 2009.

The authors say the focus on patient safety came at the initiative of the hospital’s insurance carrier, MCIC Vermont, Inc. Among the results:

Regular team training programs are held “to empower every team member to speak up and intervene if an unsafe situation may be occurring.” The training involves “all staff working on labor and delivery including clerical staff, nurses, attending obstetricians, neonatologists, anesthesiologists, and residents.”

“Good medical record charting can help defend professional liability cases and may persuade potential plaintiffs to forego filing a suit, and electronic health records on labor and delivery are less likely to miss key clinical information.” As a result paper documentation is not allowed unless the electronic system is down.

“A gynecology attending on call schedule was established separately from the obstetric coverage….The added gynecology coverage allowed the labor and delivery attending to cover the labor floor exclusively.”

Steps were taken to improve the safe use of magnesium sulfate, which is used to prevent premature labor, seizures and cerebral palsy. “Magnesium sulfate is among the most dangerous solutions used on labor and delivery…we implemented several changes, including the use of premixed magnesium sulfate and oxytocin solutions, color coded magnesium sulfate and oxytocin containers and intravenous lines, as well as using both with ‘smart pumps.’”

The hospital now has a full-time obstetric patient safety nurse, who is “involved in staff education, team training, implementation of protocol changes on labor and delivery, obstetric emergency drills, and collection of data.”

The traditional dry-erase whiteboard was replaced with an online electronic whiteboard that uses color-coded warning labels.

Three additional obstetric physician assistants were hired to help with the workload.

All staff involved in interpreting electronic fetal monitoring, including nurses, physician assistants, residents and attendings, have to be certified in its use.

To reduce the incidents of pulmonary thromboembolism, which can be fatal and is among the leading causes of maternal deaths, the hospital began administering anticoagulant medication to high-risk patients and using lower-extremity pneumatic compression devices for all caesarean deliveries.

There are regular emergency drills, using manikins, to provide additional training in dealing with some of the most dangerous delivery room situations: shoulder dystocia (when the head has emerged but the shoulder can’t), maternal hemorrhage and maternal cardiac arrest.

The hospital added a laborist (an ob/gyn who works full-time delivering babies). “Sleep deprivation can impair safety…The hiring of a laborist allowed our obstetricians to work reduced inhospital hours and likely contributed to the improved safety climate and improved outcomes at our institution.”

Regular reading assignments and tests are given to attendings and residents to keep them up-to-date on labor and delivery safety.

The authors say the main goal of the changes was to improve patient safety. According to their report, “We did not expect a rapid and significant effect on compensation payments.”

But that’s what happened. “Beginning with the fourth year of the program, compensation payments began to drop significantly….The $25,041,475 yearly savings in compensation payments for the last 3 years alone dwarf the incremental cost of the patient safety program…we expect significant savings to continue into the future.”

New York does not mandate artificial limits on compensation for people who have been harmed by medical negligence. But even advocates of such caps wouldn’t dream of arguing that they would reduce malpractice expenses by 90 percent. New York Presbyterian/Weill Cornell found a way to achieve those savings in the best way possible: by reducing the number of patients harmed in the first place.

–J.G. Preston

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A story by New York Times reporter Binyamin Appelbaum looks at how various federal government agencies answer the question, an answer that affects what they require from the industries they regulate.

The Environmental Protection Agency set the value of a life at $9.1 million [see Page 7-6, footnote 8] last year in proposing tighter restrictions on air pollution. The agency used numbers as low as $6.8 million during the George W. Bush administration.

The Food and Drug Administration declared that life was worth $7.9 million last year, up from $5 million in 2008, in proposing warning labels on cigarette packages featuring images of cancer victims.

The Transportation Department has used values of around $6 million to justify recent decisions to impose regulations that the Bush administration had rejected as too expensive, like requiring stronger roofs on cars.

And the numbers may keep climbing. In December, the E.P.A. said it might set the value of preventing cancer deaths 50 percent higher than other deaths, because cancer kills slowly. A report last year financed by the Department of Homeland Security suggested that the value of preventing deaths from terrorism might be 100 percent higher than other deaths.

Regardless of which, if any, of those answers you feel is the “right” value for a human life, contrast it to the answer the California Legislature has come up with for the value of a human life:

No more than $250,000.

That’s the cap that was imposed in 1975 under the Medical Injury Compensation Reform Act, or MICRA.  That’s the law that fixed the value of your child, your elderly parent, your stay-at-home spouse, at a maximum of $250,000, even though a jury has found that your loved one died through no fault of their own as the result of medical negligence–not because of the “luck of the draw” or an unfortunate medical condition, but because of an avoidable mistake by a medical professional trained to know better.

That’s all California law says a 16-month-old girl is worth, as Jodi and Daniel Gonzalez found out when their daughter Delaney died in a hospital after a breathing tube was wrongly set up to pump air into her stomach, instead of her lungs. The lack of oxygen caused irreversible brain damage that led to death.  Here’s Delaney’s story told by KCBS-TV (CBS2) in Los Angeles.

What may strike you as odd is, Delaney’s life could have been worth more than $250,000 if she hadn’t died at the hands of medical professionals. Or, rather, if she hadn’t died at the hands of medical professionals practicing medicine. If Delaney had died because one of the very same medical professionals responsible for her death in the hospital had been drunk, run a red light, and crashed into a car that had Delaney as a passenger, a jury would have no restrictions on how to assess the value of her life.

But because she died as a result of medical negligence, California law says her life is worth a maximum of $250,000. A jury could award more than that, but juries aren’t allowed to be told about MICRA when deliberating. Any award above $250,000 would be automatically reduced to $250,000 under the law.

The law uses the technical legal term “non-economic damages” to characterize what is capped. It’s a clinical-sounding term that really means, in cases like Delaney’s, the value of a human life. In other cases where the MICRA cap applies, “non-economic damages” means the value of the ability to walk, if you are left paralyzed by medical negligence…the value of being able to have a child, if you are left sterile by medical negligence…the value of living a normal pain-free life, if you are left in agony by medical negligence…the value of going into the world without being stared at or having people turn away from you, if you are left horribly disfigured by medical negligence.

MICRA also places a higher value on some lives than on others. Rich people are worth more. The law does not put a cap on “economic damages,” which includes past and future income lost due to death or injury caused by medical negligence. That means damages awarded for negligence affecting a high-earning surgeon or a well-compensated insurance company executive will be higher than damages awarded for the exact same negligence involving a minimum-wage worker, an elderly retiree, a husband or wife who doesn’t work outside the home, or a child whose future earning potential is not knowable.

Binyamin Applebaum’s article in The Times about federal agencies increasing their assessment of the value of a life included this: “Several independent experts…said that the increases were long overdue, noting that some agencies had been using the same values for more than a decade without adjusting for inflation.” [emphases added]

More than a decade? The value of Californians injured by medical negligence has been the same for more than 35 years. That’s because the cap spelled out in MICRA includes no provision to adjust for inflation. As the cost of living has increased, that $250,000 in 1975 would be equivalent to about $1 million today. Looked at the other way, if the Legislature were to enact a financially-equivalent cap today, it would be just over $60,000.

As the value of a human life.

–J.G. Preston

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Certainly no doctor–presumably including Gingrey–would say victims of “real” malpractice shouldn’t be compensated for their injuries (although they may question whether a jury should have the power to determine the compensation, and they may advocate for limiting the amount of compensation). It’s all those “frivolous” malpractice suits that run up malpractice insurance premiums and consumer health costs.

Right?

What’s interesting is what those who rail against the avalanche of “frivolous” suits claim as their evidence:

● “According to a study by the Harvard School of Public Health, 40 percent of medical malpractice suits filed in the U.S. are ‘without merit.’” — Rep. Lamar Smith (R-Tex.), ranking Republican on the House Judiciary Committee, on Politico.com, Oct. 1, 2009

● “Though Harvard School of Public Health researchers set out to prove in a 2006 study that medical malpractice litigation really isn’t a problem, their integrity compelled them to publish the pesky fact that about 40 percent of malpractice lawsuits filed each year in America are ‘groundless.’” — Darren McKinney, American Tort Reform Association, in a New York Times “Letter to the Editor,” Sept. 27, 2009

● “A recent Harvard study revealed that 40% of malpractice suits are frivolous, leading to 15% of the payouts.” — Dr. Marc Siegel, assistant professor at NYU Langone Medical Center, New York Daily News, Sept. 9, 2009

In citing this study (“Claims, Errors, and Compensation Payments in Medical Malpractice Litigation“) as evidence, it’s clear those who use it to promote the idea of abundant “frivolous” lawsuits didn’t actually read it. Or, if they did, they chose to ignore that authors’ conclusion that “portraits of a malpractice system that is stricken with frivolous litigation are overblown.” At the very least they never saw Harvard’s news release about the survey when it was published, with the headline, “Study Casts Doubt on Claims That the Medical Malpractice System Is Plagued By Frivolous Lawsuits.”

The authors of the study wrote:

The profile of non-error claims we observed does not square with the notion of opportunistic trial lawyers pursuing questionable lawsuits in circumstances in which their chances of winning are reasonable and prospective returns in the event of a win are high. Rather, our findings underscore how difficult it may be for plaintiffs and their attorneys to discern what has happened before the initiation of a claim and the acquisition of knowledge that comes from the investigations, consultation with experts, and sharing of information that litigation triggers. (emphasis added)

In other words, plaintiffs often need to file a claim just to get the information necessary to determine whether to proceed. And often once that information is revealed plaintiffs realize they don’t have a legitimate claim…and don’t proceed with the lawsuit. Those cases are included in the 40 percent of claims that were determined to be “without merit.”

But even when a claim is “without merit,” there can still be legitimate suffering by the claimant. According to the Harvard study, “Eighty percent of claims involved injuries that caused significant or major disability (39 percent and 15 percent, respectively) or death (26 percent).” While some of these claims were determined not to involve medical errors and thus could be characterized as “frivolous” under the definition of the word in law (“present no rational argument based upon the evidence or law in support of the claim”), those injuries can hardly be described as “frivolous” the way most people use the word (“of little weight or importance…lacking in seriousness”).

It’s true some plaintiffs in the Harvard study received awards in cases that were characterized as “without merit,” but the study found an even greater number of plaintiffs whose injuries did result from medical error and did not receive compensation. Or, in the words of the study:

Payment of claims not involving errors occurred less frequently than did the converse form of inaccuracy — nonpayment of claims associated with errors.

If the malpractice system were “fixed,” with all plaintiffs who deserved compensation receiving it and no other plaintiffs winning awards, the amount awarded to medical negligence victims would actually be greater than it is today.  Again, quoting from the study:

One in six claims involved errors and received no payment. (emphasis added) The plaintiffs behind such unrequited claims must shoulder the substantial economic and noneconomic burdens that flow from preventable injury. Moreover, failure to pay claims involving error adds to a larger phenomenon of underpayment generated by the vast number of negligent injuries that never surface as claims.

What, there’s a “vast number of negligent injuries that never surface as claims”? But isn’t this is a litigious society where people look for any excuse to sue? Not quite; the authors of the Harvard study write “research has established that the great majority of patients who sustain a medical injury as a result of negligence do not sue.”

“Frivolous” lawsuits should be among the least of the worries of those looking to improve the medical malpractice system. As William Sage, now the vice provost for health affairs at the University of Texas at Austin School of Law, said when the Harvard study was published, “the major problem out there is medical errors that are not compensated, rather than frivolous claims that are compensated.”

Of course, it’s hard to see what “frivolous” lawsuits have to do with limiting damages awarded to the victims of the most serious malpractice by juries that clearly found their case anything but frivolous. And it’s also hard to see why the existence of “frivolous” suits should restrict access to justice. As retired federal judge H. Lee Sarokin writes, “Under what other circumstances would we punish persons who have legitimate claims because others have filed frivolous ones? Do we reduce Medicare payments to honest doctors because others have made fraudulent claims?”

–J.G. Preston

Some of the material used here has appeared in an earlier post.

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