Medical negligence happens. That is a fact.

Other professional negligence happens, too.

One of the differences that distinguish medical professionals from other professionals who are negligent is tort reform laws passed by states intending to protect and insulate medical professionals from their negligence. Other professionals are apparently “on their own”.

Texas and Florida are two of the states that have passed some really draconian laws that punish patients who suffer injury as the result of a doctor’s negligence. The legislatures use a variety of arguments to pass these laws: doctors are fleeing the state, medical malpractice premiums are too high, and there are too many frivolous lawsuits.

We have written about this before and plenty of evidence documents:

• Doctors seldom “flee” a state because of malpractice lawsuits and doctors seldom come to a state because they have passed tort reform.
• Insurance company executives have testified under oath that lawsuits have little influence over malpractice premiums. Several told the Florida legislature that passage of certain tort reform laws would NOT lower premiums. Then Florida legislators passed the laws anyway.
• There is almost NO frivolous medical malpractice lawsuits filed. The cost of prosecuting a medical malpractice case is so substantial; attorneys cannot afford to pursue cases that are not reasonably clear negligence.

Let’s look at an actual case, involving a lady in Texas by the name of Connie Spears. She was taken to the hospital emergency room with complaints of severe leg pain and she told physicians about her history of blood clots. The emergency room ignored her history of blood clots and sent her home with an insignificant diagnosis. Days went by with Ms. Spear continuing to suffer pain in her legs, the legs became swollen, and she developed delusional symptoms. She was taken to another hospital where she was diagnosed with severe blood clotting causing major vessels in her legs to completely occlude.  Physicians ultimately amputated both of her legs because of tissue death from lack of blood circulation.

Texas, as Florida, has a law that establishes that a victim of negligence in an emergency room must prove the negligence was “willful and wanton”; in other words, intentional. In Ms. Spears case she would be required to prove that the emergency room doctors intended she have clots develop so severely that she would lose her legs.

Sound stupid? Sound completely ridiculous? Yes, it does; but that is exactly what the Florida legislature has done, too. It was not enough to financially protect doctors and hospitals, legislators had to go the extra mile in discouraging lawsuits against emergency room doctors.

Add to the mix that the legislatures also require, in every medical negligence case, that the plaintiff spend thousands of dollars to hire an expert to testify negligence occurred and caused the plaintiff injury.

The legislatures have also limited non-economic damages to only $250,000 against physicians. In Ms. Spear’s case, she can collect for her lost wages and future medical care, but the legislature has pre-determined that the value of losing both her legs is only $250,000.

In Ms. Spear’s case, because attorneys were worried about being required to prove the emergency room physicians “intended” to cause Ms. Spears to lose her legs, she had incredible difficulty finding an attorney to take her case. Ultimately her case was dismissed because of problems with the expert witness being unable to say the ER doctors intended the loss of Ms. Spears legs.

The lawyer for the hospital was quoted as saying:

Tina York, a lawyer for Christus Santa Rosa, said it was unusual for a case to be dismissed because of problems with an expert-witness report. The rules are in the statute, she said, to weed out plaintiffs who “can’t legally support their claim” from the beginning. (Christus Health is a corporate sponsor of The Texas Tribune.)

Poppy-cock. The laws were passed to make it so expensive and so difficult to bring a medical negligence case that no attorneys would pursue even very obvious cases of egregious malpractice, as in Ms. Spears case.

Tort reform’s lawyer in Texas, Mike Hull claims, “Our purpose had never been to have a procedural hurdle, it had been to have the plaintiffs really get the case reviewed.” That is not a fair statement of tort reformers’ “purpose”. These laws create requirements that make it financially impossible to bring negligence cases and judicially impossible to sustain lawsuits.

One must wonder how these tort reform advocates, like Mr. Hull, would feel if Ms. Spears was his mother.

I have written about this case before.

This is a case where two central Florida CVS pharmacies were filling highly suspect prescriptions for powerful pain medications for patients, including for non- Florida residents. The facts of this case were egregious and no serious effort to stop financially lucrative and improper filling of fraudulent prescriptions ever occurred until after the Drug Enforcement Administration (DEA) conducted its investigation.

CVS has maintained they were a “busy” pharmacy. I find the comments to this article as interesting as the article itself. Many in the pharmacy industry want to blame the doctors and evade any professional responsibility in the pill mill epidemic sweeping our country. Allowing that to happen is a prescription for nothing corrected.

CVS now has “enhanced” its guidelines and submitted a new plan to the DEA. “Enhanced” is code for ok we will really plan to do something now. Rightfully, the DEA has said CVS has done too little, too late. The truth is the DEA hit them where it hurts, at the bottom line. Sadly that is often what it takes.

What if…now I’m just “spit-balling”, but what if we actually had government oversight in certain industries? What if real policing of these companies occurred and real penalties could always be handed down in exchange for bad conduct?

Yes, monitoring the disbursement of powerful pin pills might even mean a little extra work, but it is needed and it is necessary. We all need to do our part; the public, the doctors, the pharmacies and the government. However, the last real and professional gatekeeper is the pharmacy and its time they step up and look at the dispensing of dangerous medications as something other than just another way to generate an enhanced bottom line.

Kudos to the DEA. These actions will lead to future arrests to slow or stop the problem, but more importantly, future lives saved.

Hmmmm, sound familiar? In my prior posts I have tried to hone in on some of the real root causes of mounting pharmacy errors. Unfortunately the Big Retailers want to create their own personal version of Hammertime’s “you can’t touch this” by pigeon holing any error into the “we are all mere mortals that make errors” column.

Then, lo and behold, I read with great interest in USA Today that CVS’s top gun attorneys are out there defending  two CVS pharmacies from being shut down by the DEA ( Drug Enforcement Agency ).

The new excuse they are using? The “we are a big busy pharmacy” defense and we would never “knowingly” fill an illegitimate prescription for heavy narcotics for cold hard cash.

According to University of Florida Emeritus Professor Paul Doering, CVS should not have filled these sketchy prescriptions:

“Someone from Kentucky who travels to a doctor in Fort Lauderdale and presents a prescription for oxycodone in Sanford, Fla., is to me a huge red flag, I can’t speak for every pharmacist in the world, but this pharmacist is not going to fill that prescription.”

So maybe a big busy pharmacy that is understaffed is the root cause of the problem after all?

If I hadn’t read it for myself I would have thought I was dreaming. So when it comes down to being shut down, facing fines, and who knows, even criminal investigations, out comes the “big busy pharmacy” defense. However, when an understaffed pharmacy is looked at as the root cause analysis for prescription errors that maim and kill people, we get the argument that it’s “a red herring” and the big chain pharmacy argues that they always have sufficient staff to properly fill prescriptions.

The truth is the epidemic of prescription errors are part and parcel of adopting a fast food mentality to dispensing dangerous medications. Yes, we are indeed all human and we make mistakes. I certainly don’t think anyone would intentionally harm someone. However, I also suspect that neither does the person who gets behind the wheel of a car when impaired, but it is still unacceptable and even criminal to allow that dangerous condition to exist.

If you remember the classic I Love Lucy episode where Lucy had to grab chocolates off the conveyer belt to put into boxes her “human error rate” went from zero to whole lot of chocolates going on the floor, in her uniform, and in her mouth when the conveyer belt was set too fast.  Like I have said before an error with my burger or even with my chocolate may be a nuisance, but it won’t likely kill me.

Until the pharmacy industry recognizes the serious nexus between understaffing and pharmacy errors, more tragedies sadly will most certainly be on the rise. That is the dirty little secret that business models driven by profits as opposed to safety, have to be addressed. The truth is, depending on the product, one business model may not be right for another. The changes must ultimately come from within these groups, but it will be investigations like this one by the DEA in Florida and civil suits accompanied by punitive damages will ultimately be the impetus to force the necessary self-reflection for the retail pharmacy industry.

Until then I intend to keep calling it like I see it……

For many of our elderly, there comes a time when they can no longer care for themselves.  If that person purchased a long-term care policy, is wealthy or is indigent, his/her care should not be a problem.

Unfortunately many of our elderly fall into “the gap” – they make too much money to qualify for Medicaid and do not have enough money to privately pay for their care.  Oftentimes, if they have children, their children cannot care for them.  Most of our elderly have worked their entire lives, contributed to society and paid into the system.  When the time comes that an elderly person can no longer care for themselves, we should have a structure, which will provide long-term care regardless of their financial status.

Florida is certainly a state where we sadly see examples regularly of nursing and assisted living facilities that are understaffed, have poorly trained staff, and have a level of housekeeping that is less than any of us would accept for ourselves. We owe it to our elderly citizens. They have earned our obligation to keep them safe and cared for in facilities in which any one of us would not mind living.

We should, as family members and as citizens of this state, be vigilante that systems exist to protect our elderly citizens.

Nursing Homes and long-term care facilities should be inspected on a regular basis to ensure that their residents get quality care.  There is no justifiable reason for a resident of a nursing home or assisted living facility to suffer from bed sores, neglect or poor care. We have state agencies charged with the duty to assure that facilities are kept clean, are well staffed and are safe.

We can be vigilante as well. If we have loved ones or friends in facilities, we should be involved in making sure they get appropriate care. We should insist that nursing home staffs are reasonably responsive to the person’s needs and that their dignity is preserved.

The State of Florida provides a service of which many people are unaware: the Florida Ombudsman for the Department of Elder Affairs:

“An ombudsman is an advocate for people who live in nursing homes,
assisted living facilities and adult family care homes. All services are confidential and free of charge.”

Residents of nursing homes in Florida have certain rights granted to them by Florida statute and they include:

• Civil and religious liberties.
• Private and uncensored communication.
• Visitation by any individual providing health, social, legal, or other services and the right to deny or withdraw consent at any time.
• Present grievances and recommend changes in policies and services free from restraint, interference, coercion, discrimination, or reprisal. Includes the right to have access to the ombudsmen and other advocacy groups.
• Organize and participate in resident groups.
• Participate in social, religious, and community activities that do not interfere with the rights of others.
• Examine results of recent facility inspections by federal and state agencies including the plan of correction if applicable.
• Manage his/her own financial affairs. A quarterly accounting will be furnished to resident or legal representative.
• Be fully informed, in writing and orally, of services available at the facility and of related charges for such services.
• Refuse medication and treatment and to know the consequences.
• Receive adequate and appropriate health care, protective and support services within established and recognized standards.
• Privacy in treatment and in caring for personal needs.
• Be informed of medical condition and proposed treatment and be allowed participation in planning.
• Be treated courteously, fairly, and with the fullest measure of dignity.
• Be free from mental and physical abuse, corporal punishment, extended involuntary seclusion, and from physical and chemical restraints except those ordered by resident’s physician.
• Be transferred or discharged only for medical reasons, the welfare of other residents or nonpayment of a bill.
• Receive a thirty (30) day written notice of discharge or relocation, and challenge such notice.
• Choose physician and pharmacy.
• Retain and use personal clothing and possessions.
• Have copies of rules and regulations of the facility.
• Notification prior to room change.
• Information concerning bed-hold policy for hospitalization.

If you suspect a nursing home or assisted living facility of providing sub-standard care there are remedies. You can file a complaint with the state ombudsman, through the Dept. of Elder Affairs or by calling 1-888-831-0404 or any of the other agencies included on the Ombudsman website, including:

Long Term Care Ombudsman Program

Florida Abuse Hotline

Agency for Health Care Administration

Elder Helpline

Medicaid Fraud

Division of Medical Quality Assurance (Dept. of Health)

We should all take a moment and ask ourselves, “when the time comes and I can no longer care for myself, do I have a plan in place?”

I have written previously regarding the hidden epidemic of prescription errors. For every error that makes the news I am certain there are thousands that go unreported.

The most recent report of a potentially disastrous pharmacy error is reported by ABC news and involves a child receiving Tamoxifen, a very potent breast cancer fighting drug, instead of fluoride, a simple vitamin to enhance dental health. This type of an error is simply inexcusable.

The known, serious side effects of Tamoxifen are many and include:

• blood clots
• strokes
• uterine cancer
• endometrial cancer
• cataracts

No child should be exposed to this type of preventable error. In CVS’s statement once again they ascribe this occurrence to:

“Prescription errors are a rare occurrence, however since any process involving people is not immune from the possibility of human error; we are committed to continually improving quality measures to help ensure that prescriptions are dispensed safely and accurately.”

If that is the case, we have a ready illustration that pharmacy consumers are those who will suffer from human error causing incorrectly filled prescriptions. Isn’t the real question about what can or should be done to further limit, if not eliminate, these dangers?

Perhaps one of the answers is to provide reliable information, which consumers can use in evaluating where they want to go to fill prescriptions. Why not have pharmacies actually post their statistics identifying the frequency and types of errors right there at the pharmacy counters for all their customers to see? Yeah, I don’t see that happening either.

CVS did conduct an “investigation” to determine if any other children were affected. It is a little unnerving that CVS indicates “most of the families we have spoken to did not indicate that their children received any incorrect pills.”

Well, that warms my heart that “most” of them didn’t get cancer fighting drugs instead of fluoride for their little teeth. Maybe that’s the catchy new slogan: “At CVS we mostly get it right….well, a lot of the time anyway.”

My concern is that, in the cases in which I have been involved, the pharmacy’s excuse in prescription miss-fill cases is this same old song and dance: mistakes were made… but we are real sorry; or some variation on that message.

I have never been involved in a case where it is admitted that a key causal factor is the volume of prescriptions being filled. And the pharmacy corporation will fight all efforts to discover that they are regularly understaffed or employing undertrained personnel. These causal factors are a critical part of the problem when negligence occurs in pharmacies.

Every corporation has safety systems in place; responsible corporations demonstrate real concern when those systems do not seem to be handling safety. Too often human error is used as an excuse in lieu of really looking in the mirror and trying to weigh the profit motive to grow fast, and fill faster, against consumer safety.

Don’t take my word it, though; ask any of the honorable employees in the pharmacy industry trying to keep up the pace. They will tell a story that, quite often, dictates profit over safety.

Listen I wasn’t there, but when CVS in its public statement only lists something like keeping similar looking medication away from each other, it tells me all I need to know. Why not simply add to that they will look at the staffing and volume of the store too? Sergeant Schultz from Hogans’ Heroes never stopped, or figured out, a prisoner escape either, and we all know why……he knew nothing!

CVS Caremark released a statement to ABC News that can be found here.

It’s not often I read a sports article and find somebody who truly understands the industry I work in like Mike Bianchi of the Orlando Sentinel did on his take in the tragic wrongful death case of football player Ereck Planchar. I hope many people take the time to read it so they get the “rest of the story”.

As outlined in an article in a HuffPost College, the case involved a real tragedy:

“During opening arguments in the wrongful death trial, attorneys representing his parents said the 19-year-old died three years ago from complications of sickle cell trait after an excessive workout where Coach George O’Leary ordered water and trainers off the practice field. They claim the university never told Plancher that he tested positive for the genetic problem. They also said coaches and trainers didn’t follow proper emergency procedures after Plancher stumbled, gasped for breath and collapsed.”

The truth is many times our civil courts are backed up because the insurance carriers are in total control of the money and the decision making. I cannot tell you the number of times where the plaintiff wants the case settled, the defendant wants the case settled, the lawyers want the case settled, the mediator and Judge wants the case settled, but sadly the insurance company just wants to make money by holding on to its money longer.

No, I haven’t “drank the Kool-Aid.” All insurance professionals aren’t bad and all lawyers aren’t good.

However this does appear to be a case where the carriers are playing fast and loose with UCF’s reputation and brand. It is reckless to keep doubling the risks for the parties with appeals and dragging the case out. It is tragic for Ereck’s family to be forced to relive the circumstances of his tragic and, apparently, unnecessary death.

I am not even talking just about the moral thing to do for this poor family, I’m talking about the insurance carrier’s duty to the “insured” (the UCF Athletics Association) who paid them significant premiums for the promise that they would be protected and that the insurance company would compensate parties for the negligence of the insured.

The jury was not a run away. They found no punitive damages, but did find negligence in the policies and methods used by UCF; and the jury clearly found that Ereck’s untimely death was the result of ignoring obvious safety issues.

The verdict is not a message that UCF acted monstrously or nefariously, but simply UCF and its staff made serious mistakes; hopefully, mistakes that have been or will be corrected so this young man’s death is not in vain.

The Orlando Sentinel reporter, Mr. Bianchi, is correct. Entities such as UCF need to show some muscle and push back on these aggressive insurance carriers. The idea of insurance is you pay premiums because you are going to potentially make mistakes and face the results of those mistakes. If a carrier simply takes in money and is unwilling to recognize compensible claims then that’s a shell game.

According to published reports in this case it could have settled for half of the verdict! So who’s to blame for a lingering, extended court battle? The family? Please, tell me a wrongful death is not viewed as frivolous even by my conservative peers? UCF? I doubt it. I suspect they want this over as badly as the plaintiffs.

When I see this type of situation, my money is with a “cowboy” carrier that likes betting the farm, especially when it’s not entirely their farm; an insurance company who is quite willing to gamble theirs and their insured’s reputation; an insurance carrier going all in, in order to hold onto moneymaking dollars as long as possible.

Is that what has happened here? Reach your own conclusions.

Next time when you read about one of these verdicts ask yourself who was in control of getting the case to that posture? I bet the farm it’s an insurance carrier that could have avoided it, and saved a lot of money and valuable court resources. I’ll bet it’s an insurance company willing to gamble its insured’s reputation and assets in exchange for just a little more profit.

I guess Mel Brooks was right, “It’s good to be the king”.

It is disappointing when otherwise intelligent, insightful people simply choose to ignore facts and fail to protect the very people they have sworn to serve.

It is no secret that many industry-wed lawmakers have been working for a long time to place damage caps on injuries caused by the negligence of others.

Those same industry-owned lawmakers stand for protecting the profits of hospitals and insurance companies over the protection of citizens. These are legislators and executive branch folks who are willing to sacrifice our rights in the interests of promises to lobbyists or keeping alive their favorite bill.

Currently, Congress, state legislators and governors are busy trying to protect corporate healthcare and insurance companies on the backs of victimized patients. Add to that a concerted effort to dismantle the only attempt, albeit flawed, to fix a flawed and dysfunctional health care system. These politicians are not builders; they seek to create or enhance nothing. These lawmakers want to dismantle anything lobbyists tell them to defeat in the best interests of their corporate constituents.

Fact: It has been estimated that medical errors cause $17 – $29 billion every year in lost income, disability and healthcare.

Fact: The Department of health & Human Services estimates that medical errors result in $4.4 billion in additional Medicare costs.

Fact: Patient rights have been taken away or diminished in 48 of the 50 states already. This has done nothing to improve health care quality or costs in any of those 48 states.

Fact: In the 48 states already enacting limits on the rights of the injured there has been no tangible savings in terms of insurance reductions or health care cost reduction.

Fact: Preventable medical errors cause the death of 98,000 people each year (Institute of Medicine). Limiting the constitutional right of injured victims has done nothing to improve the quality of health care or to reduce the numbers of injured people or the number of patients killed by preventable medical care errors.

Fact: Defensive medicine is a myth dreamed up by those who desire increased corporate profits. Defensive medicine may be motivated more by a desire to increase profits to doctors and hospitals as the alleged defensive medicine.

Fact: The “lawsuit crisis” is a well conducted campaign of propaganda, spin and lies.

Fact: Lawsuits filed by injured people represent a very small percentage of the total burden on the court system. Actually, the largest numbers of lawsuits involve divorce, estates and corporations suing each other.

Fact: Passing laws to protect one special class of Americans to the detriment of the majority of Americans is in violation of the constitution. Protecting doctors, hospitals and insurance companies while denying patients their rights, is simply unfair and unlawful.

Fact: The groups fighting the hardest to infringe on the rights of citizens of individual states are the same groups who have repeatedly told Americans that “Big Government” is bad and that the federal government should stay out of the business of the states. So much for smaller government.

Fact: People in favor of tort reform can not use facts to support their arguments. They rely on hyperbole and spin fed to them by groups supported by business interests.

Fact: Who will pay for the costs of medical care, lost income and rehabilitation caused by medical errors if the rights of victims to pursue legal remedies are taken away? You and I will pay through increased taxes to fund medicare, social security and increased insurance premiums.

Fact: Who will benefit from taking away rights? Hospitals, insurance companies and corporations.

Before you take a position on this very important constitutional battle, educate yourself, be informed, and do not blindly accept information given to you by anyone.

Read, research and rely on your own common sense.

Who is paying for all these campaigns and lobbyists who have the ears of YOUR law makers?

Following published reports and extensive media coverage regarding egregious behaviors in the medical profession, public awareness of physician and hospital errors has increased. Despite that increased attention, data suggests that the rate of reporting by physicians is lower than it should be.

In the JAMA July 14 issue, one of the major themes covered was research articles and commentary on the Physician Peer Review process and its effectiveness. The medical peer review is the process by which a committee of physicians examines the work of a peer and determines whether the physician under review has met the accepted standards of care in rendering medical services. This process is put in place specifically to assure physicians that their statements will remain confidential when commenting on the behaviors of their colleagues (many of whom are a physician’s primary referral sources).

An original research study titled “Physicians’ Perceptions, Preparedness for Reporting, and Experiences Related to Impaired and Incompetent Colleagues” found that overall, “…physicians support the professional commitment to report all instances of impaired or incompetent colleagues in their medical practice to a relevant authority; however, when faced with these situations, many do not report.

(more…)

In legal cases, a term regularly shows up: “standard of care”. It is talked about, defined and ruled on by the court. In many state statutes, the term is defined as something similar to: “that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.”

What is the standard of care in its most basic terms?

If I am a pedestrian, do I have a “standard of care” as I walk along the street? Of course I do. I must watch the pavement as I am walking so as not to trip over obvious hazards. If I come upon a blocked area of the sidewalk, where work is being done for example, I have the duty to navigate carefully and as safely as I can around that hazard in continuing my walk. I have a duty to avoid running into other pedestrians using the sidewalk. If I must cross the street, I have a number of additional duties I must fulfill.

Why do we have “duties” and “standards” by which we must act? Without them, no one would know what was expected of them and we would not be able to anticipate how to expect others to conduct themselves in given situations.

A car is traveling down a dark, deserted country road, approaching an intersection with a stop sign. The car does not stop at the stop sign and, instead travels through it at highway speed. No other cars were approaching the intersection at the time. Was the driver negligent? Did the driver deviate from the reasonable standard of care? The driver was negligent, but, luckily, caused no damage to anyone. So, if a police officer was around, a ticket would be issued, but nothing further.  So, was it excusable, since no one was hurt? Absolutely not. The same example, but the approaching driver does not see an approaching motorcycle. The motorcyclist is struck and killed. A completely different set of circumstances results, but culminate from the exact same perceptions on the part of the driver in the car. In both situations, the driver “honestly” saw no harm by running the stop sign.

This is particularly true for professionals. The public absolutely must be able to depend on certain standards of performance from professionals. For an engineer who constructs a bridge, we expect that the bridge will carry the weight reasonably expected and will not collapse with that weight. We expect that the professional will act in a manner expected from other similar professionals.

When a doctor decides to treat people, she decides to work within a reasonable standard of care accepted by other physicians. Does that mean if a physician or other professional makes a mistake that they have deviated from the acceptable standard of care? Not necessarily. It means that the professional is obliged to act reasonably as judged by similar health care providers.

If a patient arrives at the hospital with symptoms consistent with 3 or 4 different potential illnesses, it is the job of any physician to determine those illnesses, which are life threatening and try to eliminate or include those first. If the condition could be life threatening, the professional is obligated to continue their investigation until they can determine what course of treatment is best for the patient.

Physicians, like any professional, have pressures extraneous to their profession. In the case, of an engineer, it may be cost overruns and their client may be pushing to cut corners somewhere to minimize those cost overruns. With physicians, it may be a hospital or insurance company. It is the job accepted by the any professional to comply with the reasonable standard of care. In the case of physicians, it is to determine those patients who require hospitalization in order to determine their illness and those who do not need hospital care.

Professionals are required to reach reasonable, well thought, courses of action within their profession. They typically go through additional schooling to prepare them for evaluating a reasonable course of action.  The subject of a professional’s decision may seem complex, but their standard of care is no less real than the driver or pedestrian.

In his June 11, 1963 civil rights address, President John F. Kennedy confronted head-on the unfair treatment of African Americans in our society under our then-existing system of laws. President Kennedy, in imploring Congress to pass fundamental civil rights legislation, stated:

“…the old code of equity law under which we live commands for every wrong a remedy, but in too many communities, in too many parts of the country, wrongs are inflicted on Negro citizens and there are no remedies at law.”

[youtube]http://www.youtube.com/watch?v=mUVetFq2nok[/youtube]

Unfortunately, President Kennedy’s reference to our system of justice having the ability to remedy every wrong states only an ideal, but, sadly, not reality. Sometimes the difference between principle and truth is the result of legislative inaction or by legislative activism. Perhaps the most glaring example of legislative activism stripping away the “guaranteed” rights of citizens to have both their day in court and a remedy for every wrong can be seen in the medical negligence arena.

Let us examine the following two hypothetical scenarios.

(more…)