Sunday, March 07, 2004

A point-counterpoint the Atlanta Journal-Constitution on Saturday:
First, a patient's story, 'Winning' lawsuit does nothing to ease pain :

I am speaking for my son Haiden, as I am the only voice he has left.

Haiden was 16 months old. He could walk and talk and he could feed himself. Haiden loved cookies. In fact, I could get him to eat almost anything by telling him it was a cookie. Haiden had an amazing laugh, too. However, all of that is gone now.

Christmas morning, Haiden was very sick. Haiden's pediatrician had already diagnosed him with an ear infection. But Haiden was unconscious and vomiting when I rushed him to the emergency room. We waited for hours and when we were finally seen by a doctor, he looked in Haiden's left ear and said, "Oh, yeah, that's a bad one."

After that, I was chastised for "overreacting to the flu." The emergency room doctor breached several national standards of care, including not taking one set of vitals and not performing one test.

I was not given any discharge instructions. Phenergan, which causes drowsiness, was prescribed to an already lethargic baby, making it impossible for me to tell if Haiden was doing better.

The next day, I took Haiden to his pediatrician, who, at first sight, ordered me to meet him at the ER for a spinal tap. Within the hour, it came back positive for bacterial meningitis........

Unless it is your son or your daughter, you cannot understand what happens after a "successful" lawsuit. I never ended up "winning" anything. We recovered a specific amount of money. However, I will never "recover."........I agree there is a problem with frivolous lawsuits, and I am afraid that this bill will be passed partly because bogus lawsuits are the only ones that make the headlines. The truly valid lawsuits are settled and come attached with confidentiality agreements so they can't make headlines.

A very sad story to say the least. As with most of these accounts the details of the actual case are lacking. That is a problem with the debate over tort refrom, emotion sometimes overcomes reason. The best point is the feelling that nothing was "won" despite the jury award.

The "counter-point" to the story above: Impose legal limits to preserve freedoms by former Attorney General Griffin Bell and former Senator Alan Simpson (R-WY):

Legal reform is bogged down in the clear perception that what's at stake is only a battle between special interests -- tort reformers (mainly corporations and doctors) against trial lawyers.

What's really at stake is far more important -- the health and vitality of common institutions such as schools and hospitals and, ultimately, the fabric of a free society. When anyone can sue for almost anything, the effect is to diminish everyone's freedom. Justice is not supposed to be "democracy in action," where every case is decided by a jury plebiscite, tolerating wildly inconsistent verdicts for the same conduct. Justice is intended to be rendered by the rule of law, which requires judicial rulings that citizens can rely upon as guides for action. The principal role of the jury in a civil case is to decide disputed issues of fact, such as who is telling the truth.

Congress appears to labor under the misperception that limiting any claim is always an infringement of freedom, and only in extreme circumstances should it limit someone's so-called right to sue.....When legal disputes rise to a level of national importance, such as how to compensate the victims of asbestos or restoring order to health care, it is the responsibility of Congress to make the judgments of who can sue for what. By not making deliberate choices on matters affecting the broad public interest, Congress is clearly leaving that choice to self-interested people........The harm caused by America's unreliable legal system is not just industry-ruining class action lawsuits or occasional bizarre verdicts in personal injury cases. The main harm is that Americans no longer trust our system of justice. They go through the day looking over their shoulders instead of doing what they know is right.

Doctors squander billions in unnecessary tests. Jungle gyms and other athletic equipment are removed from playgrounds. Even seesaws have disappeared. Teachers, worn down by legal threats, don't dare hug a child and have almost given up trying to maintain order in the classroom.

It is the responsibility of Congress to restore order to what is now a free-for-all.

While not limited to medical liability reform, a good synposis of the overall problem.
Now in today's paper is this little piece about the worth of a human life: Life — hard to know what price is right

How much are we worth? That delicate and esoteric question permeates the tort reform debate in the Legislature.
Broken down to basic chemical elements, a human body is worth maybe $5. But isolated into fluids, DNA and tissues, our bodies could theoretically fetch $45 million in the medical and scientific fields, according to an analysis by Wired Magazine. The 1,000 grams of bone marrow — if harvested and sold at the maximum price of $23,000 per gram — could be worth $23 million alone.

Doctors and insurance companies argue that juries are tagging them with unreasonable verdicts and want to cap "noneconomic" damages — for a victim's pain and suffering — at $250,000.

The problem is, life has no "replacement cost," no book value.

So does this mean that since life is priceless, no one should get a jury award, or should the awards be of lottery caliber? The story goes on to review many methods of determining what a life is "worth", including the mother of all compensation scales, the 9/11 Victims Compensation Fund:

The fund's compensation grid starts at $250,000 and maxes out at about $7 million; the average payout has been about $1.8 million.

The fund's Web site describes actual cases: The survivors of a 36-year-old project manager with one dependent and a $221,000 salary received $3.5 million after $940,000 in other benefits and insurance were deducted. And survivors of a married business official, 38, with a $65,000 salary received $985,000, after $588,000 in "collateral offsets."

Determining how much a life is worth, being largely a subjective exercise, can be influenced by emotion. A bad thing according to my insurance agent:

Such verdicts are often an emotional response rather than a realistic one, argues Tom Gose, president of MAG Mutual, which insures most of Georgia's doctors. He says jurors' sense of sympathy can tack zeroes onto a verdict.

"That emotion, while normal, has gotten to the point of unaffordable," Gose said. "No one is worth $47 million, because the system can't afford it. It's all about balance."....He and others say huge malpractice verdicts are chasing doctors out of business, which ultimately hurts more people. And damage awards tend to be larger when a plaintiff survives some terrible injury or ordeal.

Emotion always seems to trump fact in these circumstances. The system is broken and I am afraid it will take some politician or their family member dying after showing up in an ER without a physician available due to liability concerns to really get something done.

Oh, and SB 432 is befrore the Senate Judiciary Comittee this week, keeping my fingers crossed.
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