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John Hopkins

Stealing Civil Rights From Victims

» Written by // January 25, 2013 // ,

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.

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