Wednesday, May 9th, 2012
We’ve been talking about the claims that doctors are attracted to states that have enacted “tort reform” laws. A close look at the data shows that this is a myth.
“Tort reform” refers to a broad movement begun in the 1980s by the tobacco industry. Tort reform ideologues blame personal injury lawsuits for all kinds of ills, from a weak economy and business failures to exploding health care costs. Well-funded lobbying efforts have targeted legislatures in every state. And by now only a handful of states have not gotten on the “tort reform” bandwagon.
So, in return for the false promises of more doctors, lower health care costs, and even more jobs, state legislators are trading away their citizens’ rights to sue for damages.
State after state have passed laws that put caps on what damages a plaintiff might receive, no matter how badly he or she was injured. They have also made it more difficult for some kinds of suits to be brought to court at all. This has impacted people with a wide variety of injuries, from homeowners ripped off by crooked construction contractors to retired factory workers dying from mesothelioma because they were exposed to asbestos on their jobs.
But some of the most elaborate claims have been made about one particular kind of tort, which is medical malpractice. It is an article of faith in some quarters that malpractice reform all by itself would solve most of America’s health care problems. Many states have given their doctors an extraordinary amount of protection from malpractice.
In Texas, for example, an emergency room physician can be sued only if the injured patient can prove the doctor harmed him intentionally. Since a doctor’s intentions are nearly impossible to prove, Texas ER doctors are virtually free of malpractice liability.
Back in 1999 the Institute of Medicine estimated by 98,000 Americans die every year from preventable medical error. More recent estimates have put that number at close to 200,000. Many more errors have left patients with permanent injuries.
For example, a 53-year-old Texas man named David Fitzgerald went into the hospital for a simple ulcer operation. He developed an infection that was not treated properly. The infection spread to his limbs, and both arms and both legs were amputated to save his life. However, the rigid Texas “tort reform” laws prevented him from getting a big enough damage award to pay for the care he will require for the rest of his life.
A website called 98000reasons.org documents more cases. For example, 29-year-old Quanisha Scott developed a hematoma after surgery to remove a goiter. Her complaints went unheeded and unreported. Ms. Scott went into respiratory arrest, suffered brain damage, and is now totally dependent on her mother for care.
A schoolteacher named Merlyna Adams sought help for a kidney stone and received such shoddy treatment she became infected. She lost both hands and both legs below the knee.
In the minds of “tort reform” fanatics people like David Fitzgerald, Quanisha Scott, and Merlyna Adams do not exist. They will tell you that people who sue their doctors are “greedy” people looking for “jackpot” settlements from a jury. There is conflicting data and wide disagreement about how many malpractice suits really are frivolous. But by now it’s clear that giving away the right to sue isn’t solving our health care problems.