For years, pollsters for the “tort reform” crowd (like Frank Luntz) have tried to show support for their agenda with manipulative polls that “sharply overstate support for the measures in question,” in the words of one expert. After all, imagine how creative pollsters must be to insist that American want to relinquish their own constitutional rights while aiding wrongdoers who recklessly injury or kill people, not to mention increasing the bottom line of extremely rich insurance companies with money that should go to families.
But here’s the thing. Polls like this never really make clear who is being injured and whose rights are being eliminated, like men, women and children who suffer (through no fault of their own) brain injury, amputation, paralysis, quadriplegia, cancer and other devastating injuries - or death. Imagine if these pollsters put the question this way: is it fair to strip away the legal rights of a parent who brought their sick (but easily treatable child) to an emergency room, only to have that child die due to the hospital’s recklessness?
If you caught the Today Show this morning, or read Jim Dwyer’s story in the New York Times, or Maureen Dowd’s Sunday New York Times column, you learned about the tragic story of 12-year-old Rory Staunton. A cut in his arm apparently led to an infection that would have been treatable with antibiotics. Instead, it turned lethal because both his pediatrician and the ER staff (which sent him home) failed to notice it - even though his blood tests showed it.
Think this is an anomaly?
When Isabella Beck was two-years-old, she began to experience watery eyes and a cough. Her mother called the pediatrician who recommended Benadryl. Isabella’s mother gave her Benadryl but after three days, she was still not feeling better so Isabella’s mother brought her to the pediatrician. The pediatrician checked her eyes and ears. He did not take her temperature but diagnosed her with a sinus infection and sent mother and baby home with a prescription for Amoxicillin. After two days, Isabella began vomiting. Isabella’s mother called the pediatrician who recommended that the antibiotics be stopped and advised Isabella’s mother that she should be given fluids. The next day, Isabella was still vomiting and her mother again called the pediatrician. Somebody in the office told her mother that it was the stomach virus and to continue her on fluids. Isabella’s mother called a second time that afternoon explaining that the baby was still vomiting and now warm to the touch. A staff member in the pediatrician’s office recommended that the baby be taken to the hospital. Isabella was taken to the ER by her mother. Isabella cried the entire time she waited in the emergency room and after about an hour and a half, a physician came to examine the child. Her temperature read 103 degrees. She was given medications for her fever and vomiting and was sent home. The next day, Isabella was no longer crying but, she was lethargic. By the evening her legs appeared purple-ish and she had a temperature of 104 degrees. She was rushed to the ER. A doctor later came out and explained to her parents that her heart stopped for twenty-five minutes and a test showed that she suffered severe brain damage. Isabella was in a coma. Two days later, she was declared brain dead. At the time she got sick, Isabella’s dad Danny was on his third mission hauling fuel in Iraq. Wrote the New York Post in 2007,
A Queens firefighter who raced home from Iraq to find his 2-year-old daughter in a coma blames her subsequent death on a hospital emergency room that sent the sick child home without tests or treatment a day before her condition became fatal.
Heartbroken Daniel Beck and his wife, Leticia, buried their daughter, Isabella Victoria, last week.
The family is furious at a doctor in the ER at the well-respected Long Island Jewish Medical Center in New Hyde Park who they say missed a chance to save their baby.
Eight-month-old Kendyll Bliss was dehydrated from a cold. Her parents, Kim and Ryan, took Kendyll to a Florida emergency room. Unbeknownst to Kim and Ryan, the ER did not have any medical equipment on hand to treat an infant. The ER nurse tried unsuccessfully for two and a half hours to get an adult IV needle into Kendyll’s body. After waiting yet another hour, the doctor arrived and used an adult IV to get into Kendyll’s jugular vein. Once the port was inserted, the nurse had orders to let one bag of fluid drip for half an hour and then hook up a second bag and allow it to drip throughout the night. After the first bag was empty, the nurse came in to change the bag. The nurse first squeezed the bag several times. Kendyll screamed out and Kim and Ryan then watched as air bubbles traveled through the line that was inserted into their daughter’s body. Kim and Ryan tried desperately to alert someone in the ER, but their pleas were ignored. Immediately, Kendyll turned blue. Despite more pleas that something was terribly wrong with their child, the nurse did not try to resuscitate her or call anyone for help. Kendyll passed away due to an air embolism that went into her brain and caused her to go into cardiac arrest. See here about this heartbreaking story.
Two-year-old Owen Gardner of South Dakota had flu-like symptoms. His parents brought him to their local doctor and they were sent home with suppositories. They returned to the physician when Owen's vomiting and diarrhea continued, causing him to become extremely dehydrated. The doctor did not recommend that the child be brought to the local hospital for fluids, but rather that his parents take him to a facility more than two hours away. Upon arrival at the hospital, Owen was admitted to the pediatric unit, where there was no specialist available. A nurse repeatedly tried and failed to administer an IV; a specialist did not see the child for over an hour. Owen stopped breathing and was wrongly intubated in his stomach, cutting off the flow of oxygen. Owen died two hours after his arrival at the hospital. See more here.
Seven-year old Jessie Geyer of Antioch, CA died on Halloween night 2003 from a common bacterial infection, after a local hospital failed to take a blood culture that would have revealed the cause of her high fever and the extreme pain in one of her legs. Wrote the LA Times,
According to autopsy results, Jessie died of septic syndrome caused by a bacterial infection that is commonly treated with antibiotics. Days earlier in another emergency room, Michelle said, a doctor had missed the problem.
Michelle and her husband, Mark, wanted to know what had happened. They got comforting words from their pediatrician and from the hospital where Jessie had been treated. But they didn't get the answers they were after, so they decided to sue.
The Antioch, Calif., couple figured they would have their pick of the Bay Area's finest malpractice lawyers.
Instead, four lawyers turned them down-- not because they viewed the case as a loser, but because the most it could win was $250,000. A fifth, attorney Jeffrey Mitchell in San Francisco, finally took the case, and in May he filed suit in Contra Costa County, alleging negligence by a pediatrician, a local hospital and an emergency room doctor who treated Jessie. The defendants declined to comment.
The Geyers say that what almost shut them out of the courthouse is the $250,000 limit on noneconomic damages, such as pain and suffering, set by a landmark 1975 California malpractice law.
This is exactly what the research shows. Caps like the one in California make cases involving children, whose damages are largely non-economic in nature, economically impossible for attorneys to bring. Insurance defense attorney Robert Baker, who defended malpractice suits for more than 20 years, told Congress in 1994, “As a result of the caps on damages, most of the exceedingly competent plaintiff’s lawyers in California simply will not handle a malpractice case … There are entire categories of cases that have been eliminated since malpractice reform was implemented in California.”
Cases involving the death of children are the #1 example of this. Poll that fact, Mr. Luntz.
P.S. New York does not have a similar cap, despite the best efforts of the medical and insurance lobbies to enact one. The Staunton's case is going forward.