We’re back after a long and restful August, and who better to honor with our first story back than one of the most hated people in baseball! That, of course, would be Yankee third baseman Alex Rodriguez.
Sure, A-Rod has his problems. But here’s something we actually like about him: he understands how the U.S. justice system is supposed to work. This week, his appeal process begins over his 211 game suspension over a scandal involving performance enhancing drugs. But that’s not all. He’s also considering filing a medical malpractice lawsuit! This would be “against Yankees team doctor Chris Ahmad for failing to properly diagnose the torn labrum in his left hip during last October’s playoffs.”
“This is America,” [says A-Rod], “And we do have an opportunity to protect ourselves. And I’ve chosen to take that route.”
Well, let’s put it this way. He has the opportunity to protect himself. That’s because he lives in a state that does not cap damages in medical malpractice lawsuits and even if he lived in such a state, he’s wealthy enough to pay his attorney by the hour – unlike 99% of Americans who have no access to hourly attorneys. Their attorneys are paid on contingency. And in those situations, caps on damages can make such cases prohibitively expensive to bring. (See more in this Center for Justice & Democracy report)
Just look at the situation in Texas. Over the weekend, the Austin American Statesman reported on the dramatic decline in med mal cases and payouts since the state capped damages in 2003.
Specifically, “medical malpractice claims, including lawsuits, resolved in a year fell by nearly two-thirds between 2003 and 2011 to 450. The average payout declined 22 percent to about $199,000.”
And that drop isn’t because of patient safety improvements in Texas, believe me. Check out this Texas Observer article last week about Dr. Christopher Duntsch who, “came to Dallas to start a neurosurgery practice [and] by the time the Texas Medical Board revoked his license in June 2013, Duntsch had left two patients dead and four paralyzed in a series of botched surgeries.” Writes the Texas Observer,
But the real tragedy of the Christopher Duntsch story is how preventable it was. Over the course of 2012 and 2013, even as the Texas Medical Board and the hospitals he worked with received repeated complaints from a half-dozen doctors and lawyers begging them to take action, Duntsch continued to practice medicine. Doctors brought in to clean up his surgeries decried his “surgical misadventures,” according to hospital records. His mistakes were obvious and well-documented. And still it took the Texas Medical Board more than a year to stop Duntsch—a year in which he kept bringing into the operating room patients who ended up seriously injured or dead.
In Duntsch’s case, we see the weakness of Texas’ unregulated system of health care, a system built to protect doctors and hospitals. And a system in which there’s no way to know for sure if your doctor is dangerous.
Up until 2003, medical care in Texas was regulated by a system of checks. Hospital management, the court system and the Texas Medical Board formed a web of regulation that penalized and prevented bad care.
But in the past 10 years, a series of conservative reforms have severely limited patients’ options for holding doctors and hospitals accountable for bad care. In 2003, the Republican-dominated Texas Legislature capped pain-and-suffering damages in medical malpractice lawsuits at $250,000. Even if a plaintiff wins the maximum award, after you pay your lawyer and your experts and go through, potentially, years of trial, not much is left.
The Legislature has also made suing hospitals difficult. Texas law states that hospitals are liable for damages caused by doctors in their facilities only if the plaintiff can prove that the hospital acted with “malice”—that is, the hospital knew of extreme risk and ignored it—in credentialing a doctor. But the Legislature hindered plaintiffs’ cases even more by allowing hospitals to, in most cases, keep credentialing information confidential. In effect, plaintiffs have to prove a very tough case without access to the necessary hospital records. This is an almost impossible standard to meet, and it has left hospitals immune to the actions of whatever doctors they bring on. Hospitals can get all of the benefit of an expensive surgeon practicing in their facility and little of the exposure. This has freed hospitals from the fear of litigation, but it’s also removed the financial motivation for policing their own physicians.
The medical malpractice cap and the near-immunity for hospitals snapped two threads from the regulatory web. What remained was the Texas Medical Board.
Meanwhile, medical societies and tort reform business groups say that the state has seen an influx of doctors as a result of this “tort reform” law. I suppose they count Dr. Christopher Duntsch as one of them. Yet a recent Center for Justice & Democracy study confirms that there has never been a link between a state’s legal system and where doctors choose to practice. This is according to virtually every academic and government study every done on this topic and the actual experiences of states. That would include Texas where, “according to the latest academic research, the rate of increase in Texas of physicians engaged in direct patient care was lower after caps passed, and two specialties (OB/GYN and orthopedic surgery) grew more quickly before caps were enacted than after.” In fact, Texas is now currently facing an urgent doctor shortage.
But to understand the real tragedy of caps, one must know the story of Californian Steven Olsen.As a result of medical malpractice, 2-year-old Steven was blinded and severely brain damaged.
At 2 years old, he could not see, eat, walk or even speak.… A jury awarded the Olsen family $7.1 million but a California law limited that the amount was capped at $250,000.
Caps take money out of the hands of catastrophically-injured children and put that money into the pockets of insurance companies. Let’s hope California does something about it.