There’s an interesting IMDB list called “The 100 Best Evil Characters.” It includes some obvious choices: Darth Vader, Lord Voldemort, Chucky. I’m not sure what it takes to qualify for this list but I’m wondering whether the list creators might consider a new addition. It’s more of a group, actually. Let’s just call them: corporate hospitals.
We wrote a few years ago about what they did to brain-injured newborns in New York. Now, it’s Maryand's turn, apparently.
In Maryland, hospitals are pushing – and I mean pushing very hard (complete with a media campaign and push polls) a bill that targets the most vulnerable victims of medical malpractice – catastrophically-injured newborns. Their legislation – which is the subject of Maryland legislative hearings later this week – would abolish access to the jury system for these babies and their families, no matter the extent of the hospital’s misconduct or the severity of the child’s injury. To be compensated, parents would be forced to go to a state fund, controlled by the state’s powerful medical establishment.
Needless to say, this proposal denies these families the same kind of rights and recourse that every other negligence victim has in the state. If an adult man were injured by medical malpractice in Maryland, he would be able to sue his doctor or hospital, receive compensation determined by a neutral judge or jury after hearing all the evidence, and obtain some measure of justice by holding the wrongdoer accountable in court. Under this proposal, only brain-injured newborns and their families would be stripped of their constitutional rights. And because unsafe hospitals would no longer fully pay for their own malpractice in these cases, accountability for negligence would be weakened. Studies show that when a state strips away a patient’s right to sue in court, medical errors increase as the deterrence function of the tort system is weakened leading to the practice of riskier medicine.
Sadly, proponents of this bill are regurgitating the same unfounded threats about “lack of access to care for women” that we saw years ago from the insurance and medical lobbies and their political allies, like Rick Perry in Texas. Even aside from the fact that Maryland already has more OB-GYN’s per capita than any other state in the nation, the suggestion that OB-GYN’s might now leave Maryland or abandon their specialty if this horrendous legislation isn’t enacted, is outrageously false fear-mongering. In Texas, that realization came too late to stop legislation that stripped families of their legal rights, later leading to articles like “Baby I Lied.”
There are years of studies showing no correlation whatsoever between where physicians decide to practice and the malpractice environment, including malpractice insurance rates and state tort law. (See CJ&D's Med Mal Briefing Book starting at page 50.)
Here's another observation. For over 40 years, policy proposals in the area of medical malpractice have concentrated almost entirely on the “doctors as victims” narrative. In other words, the insurance, hospital and medical lobbies effectively turned the malpractice issue on its head, so that policymakers treat medical malpractice primarily as if doctors, hospitals and their insurers were the victims of it, instead of the hundreds of thousand of patients who wind up dead or injured each year. This is well-reflected in the hundreds of medical malpractice laws that have passed around the country, including in Maryland, virtually all of which are designed to weaken the liability of health care providers. This proposal is yet another example.
And how ironic, the patronizing criticism made by providers and hospitals that say this system is needed in Maryland because the malpractice system delivers compensation too slowly to victims. As others have written, “This argument strikes us as an example of the ‘chutzpah defense,’ best exemplified by the individual who killed his parents, and then threw himself on the mercy of the court because he was an orphan.” Nothing today prevents hospitals or liability carriers from settling legitimate claims with patients before they file a court case, or from paying valid claims expeditiously. In fact, informal pre-trial settlements, where both parties voluntarily agree to take a case out of the civil justice system, are not only appropriate but currently resolve the vast majority of legitimate medical malpractice claims today. However, schemes like this, which tilt the legal playing field dramatically in favor of the health care industry, eviscerate the jury system and patients’ rights to adequate compensation, and protect the most dangerous hospitals and incompetent physicians, are deplorable.
Indeed, never in the history of this country has an administrative system turned out ultimately better for victims who ceded their right to trial by jury. Even if a program begins with good intentions, taking any compensation decision out of courts subjects it eventually to influence-peddling and future budgetary/solvency considerations that no lawmaker today can control. These problems are always resolved on the backs of more powerless victims, who gave up their legal rights with vague and unenforceable promises that are ultimately broken. Just look at what's happened to workers comp in this country. Slashed benefits, workers denied help. That is the lesson of history.
Good luck Maryland. Sadly, you’re going to need it.