Give Patients a Fighting Chance

By Jim M. Perdue

Austen is a handsome 12 year old boy.  He has a round, smiling face and thick brown hair.  He is courteous, works hard in school, loves his parents and would rather play with his computer than do his school work.  In short, Austen is a typical 12 year old boy except for one thing.  He is blind.

Austen had a history of migraine headaches and failed his first school eye exam when he saw his ophthalmologist at age 4.  The doctor prescribed glasses at higher and higher strengths each time Austen returned with complaints of eye pain, headaches, or a failed school eye exam.  After two and a half years and seven visits, the school nurse recommended he see another eye doctor.  Within a week of his first visit to a new, dedicated physician, Austen is referred for a CT Scan that diagnoses a tumor on his optic nerve.  A week later, a neurosurgeon removes the tumor, but the delay has allowed a small, simple tumor to grow into vital brain tissue.  The surgeon must remove Austen’s pituitary gland, and he is left permanently blind.  Austen fell through the cracks of medical care.  Far too many do.

Nothing happened to Austen’s doctor.  No sanctions, no suspension.  This is not surprising since the Texas Board of Medical Examiners has not revoked any doctor’s license because of medical errors for the past five years.  His parents sued for malpractice.  After extensive investigation and discovery and on the eve of trial, the doctor’s insurance company settled for an amount that funded a trust that will help him get through life and survive after his mother and father are gone.  The damages he recovered in his lawsuit represented the physical pain and mental anguish of being left sightless for the rest of his life.  Austen had the right to have twelve independent citizens say whether the doctor was negligent and what the harm done was worth.  His parents had the ability to get the best lawyer they could find to protect Austen’s interests.

As I write this article, the state and national legislatures are considering laws that would deprive future survivors of malpractice of this safety net. Under a proposed limit for damages in malpractice cases of $250,000.00, the responsibility of the doctor who failed to properly diagnose and refer Austen would be capped.  Two hundred fifty thousand dollars is all the doctor and his insurance company could ever owe a child blind for life regardless of what any jury might say.  And, one sided limitations on attorney’s fees mean that patients can no longer hire the best lawyers.

The idea of a malpractice crisis is not new.  In 1847, a physician wrote in the Boston Medical and Surgical Journal, that “legal prosecutions for malpractice occur so often that even a respectable surgeon may well fear the results of his surgical practice.”  In this century there is a “malpractice crisis” every seven or eight years.  The crisis coincides with downturns in the economy and stock market.  Because insurance companies aren’t making as much from investing their premiums, someone has to come up with the difference.  And, since politics is about money and influence, those with the least are asked to give the most.  Children don’t vote, don’t contribute to campaigns.  Survivors of medical malpractice, the maimed and crippled, don’t’ carry any political weight.

A patient injured by medical carelessness faces incredible obstacles.  Past legislatures, prompted by insurance companies and medical institutions, have raised significant hurdles that injured patients must clear before they even get to the courthouse.  Unlike any other civil action, the malpractice plaintiff must post a cash bond and file written reports from qualified experts within one hundred eighty days of filing suit.  Defendants have persuaded courts to dismiss many meritorious cases seizing upon trivial deficiencies in these technical requirements.

Even if the case is meritorious, chances of persuading a jury to find culpability and award adequate damages is slim.  Governor Perry, who backs the insurance companies’ bill, says the fact that seventy percent of malpractice cases are lost means that too many frivolous suits are filed.  Our governor fails to consider the fact that the prejudice against the malpractice claimant may cause unjust results.  Any practicing attorney or trial judge knows that juries often give doctors the benefit of the doubt and are very conservative in awarding damages even to those catastrophically injured.

The idea behind proposed legislation is to deny access to competent lawyers for malpractice survivors.  Corporations and insurance companies are represented by the best lawyers money can buy.  While it is popular to howl against trial lawyers, when someone is crippled or maimed as a result of medical errors they want to have the best lawyer they can get representing them.  If they have to go to court, patients want a fighting chance.  The real purpose behind limiting patients’ rights is to limit their access to competent counsel.  Some years after California passed its package of malpractice reforms, Robert C. Baker, a lawyer who represented doctors and hospitals for more than twenty years, testified to the United States Congress that the effect of caps on damages, defraying future damage awards, and limiting attorneys fees was to make it impossible for patients to get qualified, competent attorneys to handle their cases.

Finally, the corporate spin doctors try to sell limiting malpractice awards on the basis that “juries can’t be trusted”.  Jurors have nothing to gain from their service.  They cannot be lobbied or bought with political contributions.  We trust citizens to decide whether a criminal defendant lives or dies.  We trust them to resolve multimillion dollar disputes between corporations.  But, the insurance companies and corporate hospital owners say citizens can’t be trusted to decide a case brought by an ordinary citizen claiming medical carelessness.

Our Founding Fathers did not view our civil courtrooms as playpens for the rich.  Thomas Jefferson argued that the right of the individual citizen to have access to an independent jury was more fundamental to a democracy than the right to vote.  Those presently advocating limiting patients’ rights try to hide the fact that they are asking citizens to give up personal freedoms they now have in order to expand corporate freedoms.  If they are successful, we can amend the American truism and pervert it to, “Justice for all, except ordinary citizens.”