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Medical Errors and the Litigious Patient

By       Message Michael Watson     Permalink
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Many of us have heard the devastating numbers--as many as 190,000 people killed each year by hospital errors (that's over 500 every day); 1.5 million people injured each year by medication errors; 90,000 people killed each year by infections acquired in hospitals. Yet, the insurance companies still want to blame the injured patients for the high cost of medical care, saying that lawsuits are costing patients money. The truth is that the total cost of all medical malpractice insurance is less than one percent of the total healathcare bill in this country. The New England Journal of Medicine published a study finding that the vast majority of lawsuits against healthcare providers involved patients with significant injuries caused by real medical errors--not some frivolous claimant looking for a windfall.
Why, then, do insurance companies blame patients? When someone is killed by hospital error, shouldn't their loved ones be entitled to ask why?
The Seventh Amendment to the Constitution states that the right to trial by jury is not to be taken away, but insurance companies want to take that basic right away from injured patients. The design of the Constitution was to empower every segment of society by implementing a scheme which minimized the opportunity for absolute power, and maximized the potential for checks on that power. We have become complacent in the job of protecting our liberties. We are in danger of allowing our development as a nation to be controlled by those politicians, lawyers and bureaucrats who are beholden to the corporate world. They have become the manipulators, and the depositories of power. As wealth is more and more concentrated in powerful hands, and that wealth becomes more and more influential in government decision-making, the true control of the law rests in the hands of the legal and political advisors to the corporate interests, their lobbyists, and the insiders that have become institutionalized in their positions.

Thomas Jefferson, a lawyer, and author of the Declaration of Independence, was one of the first to articulate that happiness was something that people had a right to expect, and that government should foster it. It was not until the Bill of Rights was appended to the Constitution, that anyone gave much thought to the concept that our personal liberties needed specific protection to insure that they would not be compromised by the form of government that was being devised. That steadfast belief in individual liberty was the main reason that we fought Nazism and Communism nearly two hundred years after Jefferson.

Abraham Lincoln, a country lawyer, with little formal education, had a gift for capturing the essence of our spirit and morality with but a few well-chosen words. His belief was that every individual in this country should be treated equally, even those individuals who believed that every individual should not be treated equally. When Louis Brandeis, one of our country's most admired and influential lawyers and Supreme Court justices, began to rise in prominence and notoriety, he did so only because he sought to obtain balance on behalf of the little guy and middle class against large corporate corruption and monopoly-seeking conglomerates. His operating conviction was a single one--that morality came from within every human being, rather than from a collection of individuals gathered for the sole purpose of furthering a business venture or economic enterprise.
It has become simple for the corporations and the insurance companies to sell the idea of limiting the rights of the victims. Why is our public discourse replete with arguments for "tort reform" limiting the rights of people to seek redress through the legal system? "How dare you sue us and hurt us, after accepting the benefits of all we have given you!" The catch is that they have profited by the billions for their benevolence, and now want to leave all of us holding the bag. It has become easy because they make it sound like the consumer will be the ones to pay for "skyrocketing jury awards" and "frivolous lawsuits." The truth of the matter is that these words are a scare tactic designed to perpetuate the unchallenged and limitless profits from the products or services that we think are always safe, but are really not. Are the courts being used solely to line the pockets of trial lawyers, or are the corporations, their insurance companies and their lawyers trying to change the system so that they can grease the moneymaking machine without being required to answer for the consequences of their conduct?

Corporations were responsible for designing fireball Ford Pintos that would explode upon rear impact; for mass producing super-absorbent tampons that caused women to die from toxic shock; for manufacturing tires known to cause vehicles to roll over and kill people; and for falsifying earnings information in shareholder reports relied upon my thousands of families who saw their retirement savings mutilated. The three branches of our government were created for a specific purpose by the framers who so carefully considered the balancing of society's competing interests. Each of these is to act as a check on the other, so that no one of them becomes the absolute arbiter of the law. The judicial branch is the only branch that allows real people to participate directly in the process of decision-making. The jury is the ultimate finder of the facts in any dispute before the courts. In the judicial branch, the final arbiter of the facts is a group of people who are not beholden to anyone, who come randomly from all walks of life, who none of the participants have spoken to before nor will they ever again. They hear evidence that is presented by rules that apply equally to all sides of the conflict. The conflict is one that is adversarial, guaranteeing that all issues appropriate for the decision will be presented, and that all arguments will be made.

The right to a trial by jury is one that is guaranteed by the Seventh Amendment to our Constitution, and it was put there for a reason. There is no other society in the history of mankind that has ever been able to devise anything nearly as good, much less any better.

The National Institutes of Health determined in 1999 that as many as 98,000 people are killed each year by needless and preventable medical error in hospitals. That number has doubled in seven short years. Tens of thousands more are killed or severely maimed by medical error. Yet, although we think nothing of spending hundreds of billions of dollars to prevent the loss of even one life to an act of terrorism, many of our politicians, prodded by the insurance companies, want to limit compensation for the same loss of a medical negligence victim to, in the end, no more than $75,000? We cannot simply get rid of doctors, hospitals and nurses that make serious mistakes and kill or maim their patients, since people, and the institutions that function solely as a result of the efforts of human beings, will err. So, efforts aimed toward that error could only succeed in reducing it, not eliminating it. We know that we must still be ultimately required to compensate those whose suffering cannot be avoided through error reduction.

Shouldn't all of us should want a system that (1) lessens the prevalence of medical errors (2) provides an avenue for compensation, without undue reward or "lottery" windfall, for those who are injured by medical negligence, and (3) places the ultimate cost of such compensation on those whose conduct is the most reckless. To do this we must rid the insurance companies of the notion that their bad investment decisions should be rewarded by either soaking the doctors for more premium dollars or further robbing the innocently injured victim of his day in court. If we do not do these things, we will be left with two unacceptable choices (1) relegating crippled and brain-damaged victims of medical negligence to monetary recoveries for their life of suffering that would not even pay for one week of salary of an Enron executive or our president's four years at prep school, or (2) allowing insurance companies to reap profits from good and caring doctors and hospitals in such huge sums that these health care providers will no longer be able to afford to render the type of care that the system should seek to obtain.

So whose side should you be on? There really is only one side the side that promotes good quality, safe healthcare, at a reasonable cost, in a system that allows for reasonable compensation when an innocent patient is harmed by negligence (albeit well-intentioned). If you are hurt by a doctor who, while driving home from the hospital, runs a stoplight because he was not paying attention, it should not matter that he was well-intentioned and did not mean to hurt you. You should still be compensated. If you lose the use of your limbs in that accident, your recovery of damages should not be limited by some arbitrary amount, based on the argument that a high award would raise the doctor's insurance premium. No one would stand for such an argument.

Beware of the popularity of a thought or idea that serves your advantage today, because that thought may well become a rule of law. Tomorrow, you might not be the one to make the rules; or even more ironic, your popular rules may easily turn to your disadvantage. Do you support the rule of popular will when in the minority, as you do when in the majority? Do we give away our rights under natural law when we are relegated to the minority, or is there something that preserves these inviolate to all people, as was said by Thomas Jefferson and repeated by Abraham Lincoln ninety years later? The answer must be that we have to take a hard look at ourselves and determine what is important to the survival of the meaning of the phrase "justice for all."

 

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www.stopmedicalerror.com
author of America's Tunnel Vision--How Insurance Companies' Propaganda Is Corrupting Medicine and Law.

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