Connie Spears’ legs were unnecessarily amputated because ER doctors first sent her home from the hospital with a severe blood clot and extensive tissue damage, even though she told them of her history with blood clots. She tried to find a lawyer to take her case but because the negligence laws in Texas have become so anti-patient thanks to “tort reform,” she couldn’t. Finally, one heroic attorney, Justin Williams, took her case saying, “Her life has basically been ruined by all of this, and there was just no way I could turn her down.”
But then this happened: [T]he case fell apart under the new expert-witness rules.” Not only must Ms. Spears prove the ER doctors were “willful and wanton” in their negligence, she had to find “a practicing or teaching physician in the same specialty as the defendant to serve as an expert witness” to say it. Even more outrageous, if the patient “fail[s] to produce adequate expert reports within 120 days of filing their cases, they are liable for defendants’ legal fees.” So in her case, she tried but couldn’t meet this absurd time-frame. Now, apparently some of the defendants are trying to make her pay their legal fees! Writes the Times, “With her retirement savings tapped and her husband out of work, she is afraid they will lose their home.”
At the same time, this appeared in the Times Wellness blog by Pauline Chen, M.D. The focus of this article is that “doctors have started to shift their focus from the financial aspects of malpractice to the untold hours spent focused on lawsuits.” In other word, now we should be more concerned about the “psychic” damage to physicians (who have well-paid insurance lawyers defending them, by the way), than the horrifying actual damage caused by negligent care, killing 98,000 people every year (at least), plus brain injury, blindness, quadriplegia, misdiagnosed cancer, the death of a child, etc. Really? How about the fact that the vast majority of preventable errors that physicians commit never result in a claim at all? (Even Dr. Chen puts this likelihood at less than 5%.) Shouldn't we be far more concerned about what happens to patients like Ms. Spears in states like Texas?
In addition, if you take a look at the Health Affairs study cited in this blog, written by researchers at Rand’s Institute for Civil Justice, it's clear that a tremendous amount of manipulation of raw data went on. And the most obvious consideration – a physician’s malpractice history including whether there were multiple claims against the same physician - was not considered relevant by these researchers! Yet the vast majority of doctors (82 percent) have never had a medical malpractice payment. In other words, in this Health Affairs study, the vast majority of good doctors are thrown into a group that includes those with long histories of malpractice in order to achieve an "average," suggesting that all doctors should fear spending of good chunk of their careers fighting claims. This is misleading.
Nor is this helpful to the debate. Other studies say that doctors’ fear of lawsuits is “out of proportion to the actual risk of being sued” and enacting “tort reforms” has no impact on this phenomenon. Several explanations are suggested for this undue fear. One squarely blames the medical societies, which continuously hype the risk of lawsuits to generate a lobbying force to help them advocate for more and more liability limits for doctors. This New York Times article is simply adding to the hype machine.
Nothing today prevents insurers from settling legitimate claims with patients before they file a court case or from paying valid claims expeditiously. Yet they do not. Insurers hold onto money as long as possible. They deny, delay and defend claims even when their clients are clearly at fault. And why shouldn’t they in states like Texas, where patients will never win? Trying to come up with explanations that blame patients for any of this is sickening.