Life in Texas After Tax Tort Reform

In every state that has passed "tort reform," horror stories abound about how injured patients and the survivors of those who have been killed by medical malpractice can't get their day in court.

While the enemies of justice peddle caps on damages as a "reasonable" limitation on jury verdicts for pain and suffering, what they don't tell you is that caps will effectively eliminate cases brought by the most vulnerable members of our society - women, children, the elderly (who have the highest exposure to the health-care system), minorities and developmentally disabled people. That's because cases involving those folks don't involve much, if any, economic damages. With recovery of non-economic damages capped at an artificially low number like $250,000, those people won't be able to find a lawyer to take their cases because the maximum recovery won't even cover the law firm's out-of-pocket costs to develop the case. Like so many other draconian policy proposals by the conservative right, rich white guys will do just fine with caps on non-economic damages, but the rest of us will be out in the cold.

On Sunday, The New York Times did a piece exposing the results of "tort reform" in Texas, which now requires injured patients and their families to prove "wanton and willful" negligence in order to sue an ER physician. Here's an excerpt:

For the entire story, http://www.saynotocaps.org/newsarticles/statestortreformlaw.htm

The tort reform that state lawmakers passed in 2003 made it more difficult for patients to win damages in any health care setting, but especially emergency rooms. It capped medical liability for noneconomic damages at $250,000 per health care provider, with a maximum award of $750,000.

Less well known was new language to safeguard under-the-gun emergency room doctors from civil damages unless it could be proved that they acted with “willful and wanton” negligence — that they not only put the patient in extreme risk but knew they were doing it.

Malpractice lawyers say this is a near-impossible threshold to meet. “You’d have to be a Nazi death camp guard to meet this standard,” said Jon Powell, a malpractice and personal injury lawyer based in San Antonio.

But Don't Let the Injured Patients Sue

A stunning little news item from yesterday's Philadelphia Inquirer:

West Chester medical device manufacturer Synthes Inc. and its Norian Corp. subsidiary formally pleaded guilty today to charges that they illegally experimented with a spinal bone cement on patients and will pay fines totaling $23.2 million.
Synthes also agreed to sell Norian and enter a corporate integrity agreement, according to an agreement reached with the U.S. Attorney's Office and the Department of Health and Human Services.
Norian tested the cement from 2002 to 2004 on 200 patients without approval from the Food and Drug Administration. Three of the patients died on the operating table.
Prosecutors say the companies sought profits over patient safety.

This is just the latest example of corporations willfully disregarding public safety in the pursuit of profit - the same corporations that lobby for "tort reform" and spent hundreds of millions of dollars in the recent midterm elections to elect "pro-business" candidates to Congress.

http://www.philly.com/inquirer/breaking/business_breaking/20101130_Synthes_enters_guilty_plea_in_bone-cement_case.html#ixzz16tgyA1Ab

Dangerous Times Call for Campaign Against Tort Reform

   We live in dangerous times.  Our food supply becomes more tainted as staples like eggs, produce and peanut butter pass on deadly germs, and even tap water becomes undrinkable. Cars run amok but their manufacturers can’t explain why, and hardly a week goes by without some innocent child being killed by a faulty crib, car seat or toy. Medications that are supposed to heal are regularly revealed to cause more harm than good, and every year, medical malpractice accounts for eight times more American deaths than drunk drivers.
   The list of stealth killers is long and unfortunately growing – tobacco, asbestos, lead paint, cars with exploding gas tanks, Bridgestone tires, runaway Toyotas, tainted peanut butter, drugs like Vioxx and Avandia, Guidant defibrillators and Boston Scientific heart stents. And while those are the products we read about in the newspaper, they are merely the tip of the proverbial iceberg. When we’re sick or injured, we’re forced to go to self-policing hospitals that can’t control infections, often administer wrong medications or improper dosages, operate on the wrong body parts, and still leave instruments and sponges inside patients with alarming frequency.
   Incredibly, the businesses, corporations, trade groups, and professionals who are responsible for creating these and other dangers for ordinary Americans have spent much of their effort, not on fixing their own problems or healing those whom they have harmed, but avoiding the legal consequences of their actions. They have lobbied mightily to remove protective regulations and get industry-friendly foxes to guard the people’s henhouses. They unabashedly seek to limit the full expense of their own bad behavior, thereby shifting the cost of injuries back to victims, society and the taxpayers.
  For decades, the U.S. Chamber of Commerce and other industry groups have invested heavily in the election of business-friendly legislators and meddled in the selection of judges. In this year’s midterm balloting, the Chamber funneled unprecedented, untraceable millions from American, foreign and multinational corporations into our electoral process. Now, those same corporations will be looking for a return on their investment.
   Although they have succeeded in buying influence in the halls of power, they have met with stubborn resistance in the halls of justice where ordinary people get to judge their conduct. Thus, they have turned to a strategy that goes far beyond targeting lawmakers; they want to turn Americans against the very court system that protects us all.  For decades, big business has spent near-limitless amounts on public relations to vilify attorneys, discredit the jury system, divert attention from their own misdeeds, and deceive voters and jurors into believing their fellow, innocently injured citizens are “hitting the jackpot” by filing “frivolous lawsuits.”
  Since the beginnings of our democracy, our civil courts have served as the great equalizer where every man, woman and child can hold even the largest and most powerful corporations accountable. As we have seen in the BP oil disaster, Toyota recall, the Massey mine explosion and numerous other public safety catastrophes, government regulators too often are unable or unwilling to protect Americans from harm. Lawsuits decided by juries have been the only way to hold corporations and their high-priced executives responsible, and deter them from endangering the public. Jury trials publicize and warn of corporate misdeeds and allow average Americans to decide the appropriate punishment. That’s why the powerful corporate interests want lawsuits gone.
   Legislators in Washington and Harrisburg, allied with big business and Wall Street, have made it known that one of their top priorities for 2011 will be demanding pro-industry restrictions, known as “tort reform,” on the people’s right to sue. They have teamed up with the price-gouging insurance industry and will cleverly use friendly figures like doctors and small businessmen to hide their profits-over-people agenda. 
   However, their success is neither inevitable nor certain. Public exposure of their dangerous ideology and underhanded methods, and a full understanding of the truly devastating effects of their schemes can tip the scales back, but only if we are willing to fight for our rights. Tort reform has yet to save its first life or prevent its first injury. That’s something they don’t want you to think about as you drive to work, go shopping, or check into a hospital. To be forewarned is to be forearmed. Consider yourself forewarned.