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The Myth of the Medical Malpractice Insurance Crisis

malpractice insurance crisis, unsafe drugs, hospital mistake, unsafe drugs, hospital mistake, healthcare politics, healthcare negligence, doctor negligence



Concentration of wealth and power leads to destruction of democracy. 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. Jefferson stated that the economic gain of the trading companies of the mother country should not be supreme over the human inalienable right to self-government. It was not until The Federalist Papers were written, and 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.

Equal treatment under the law should be our mantra. The person that led us through the darkest days of our nation was a country lawyer, with little formal education, who started his career as a trial lawyer with 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. That moral conviction was often spoken by him, proclaiming that it was derived from his belief in a supreme being, a being who gave Lincoln a spiritual compass for both his public and private lives.

Our heroes have always been the little guys whose motivation is something other than personal gain, notoriety or influence–the people who act upon a moral and spiritual compass. 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. Without asking for it, he was given by the nation and his admirers the name “the people’s attorney.” 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.

Corporate works do not immunize from justice. Money and power in corporate hands give great opportunity for good things. Does that fact, any more than England’s assistance to the colonies it established for trading purposes, entitle the corporations to control our individual destiny or pursuit of happiness? Are we becoming so disinterested and indifferent that we, in the interest of accepting such benefits from corporate America, relinquish our individual safety, security, health and freedom? Should we accept the new products that kill, the new drugs that cripple, and doctors or hospitals who maim, all in the name of progress and creativity? Should we immunize one segment of society from being responsible for the harm they do, simply because they have provided us some benefits? Shouldn’t society, through its laws, discourage irresponsible conduct that hurts us? When individuals are hurt by such conduct, shouldn’t we provide a mechanism to compensate those who are harmed, and spread the cost of that compensation among those who have received the benefits?

Fear should not be a motivator for destruction of liberties. Why is our public discourse replete with arguments for “tort reform” limiting the rights of people to seek redress through the legal system? It is like Great Britain and the colonies all over again. They say, “We give you these nice new things and yet you treat us like the enemy!” Now when you get hurt by the corporate conduct, they say “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 simple for the corporations and the insurance companies to sell this idea of limiting the rights of the victims. 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 common thread is that they all had gathered for the purpose of making a profit for their companies. The corporate interest became competing with individual’s interest. 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.

Trial by jury--the bastion of democracy. 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. That reason was centuries old even before there was such a thing as the Constitution, and the reason exists today more than ever–the right of every person to have important issues in a legal dispute to be resolved by people beholden to no one, controlled by no one, and people who cannot be penalized or chastised for the results obtained. 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.

Medical errors, hospital negligence, doctor negligence, and the dangerous healthcare system are risky ventures for all healthcare consumers. 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 $250,000? 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.”

Published: 2006-12-14
Author: Michael Watson

About the author or the publisher
I am a law professor and practiced healthcare law for thirty years as a litigator and mediator. I have written four law books and one non-fiction trade book. I live in New York City and I have done thirteen radio interviews and one TV interview on my topic, healthcare law and the civil justice system. I am a healthcare safety advocate and writer. I have taught medical malpractice law at a major university law school for four years and currently teach civil justice reform.
www.americastunnelvision.com

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