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Brett Emison
Brett Emison
Attorney • (800) 397-4910

Tort Reform: Insurance Lobbyists Want To Take Away Your Rights

3 comments

According to Scientific American, preventable medical mistakes kill 200,000 American each year. Despite all those deaths, insurance company lobbyists want you to give up your right to a jury trial if one of these accidents happens to you or your family member.

The U.S. Constitution and State Constitutions grant you the right to a trial by jury.

Article III, Section 2: Trial by Jury, Original Jurisdiction, Jury Trials

7th Amendment: Trial by Jury in Civil Cases

In Suits at common law. . ., the right of trial by jury shall be preserved. . . .

Why would anyone give up his or her constitutional right to a trial by a jury of peers?

Why would we give up a fundamental constitutional right in order to protect negligence that kills 200,000 people per year? Do insurance lobbyists have us so scared that we would give up a fundamental right deemed so important that it was included in the original Bill of Rights?

What are we really scared of? Some facts from allbusiness.com:

  • Average liability premiums across internists, general surgeons and OB/GYNs are nearly identical for states with or without caps on medical malpractice damages

  • Average liability premiums for OB/GYNs are nearly identical for states with or without caps

  • Average liability premiums for general surgeons are nearly 10% higher in states with caps

  • Average liability premiums for internal medicine are nearly 10% higher in states with caps

"Malpractice insurers promised tort law changes would lower premiums, yet it has not happened."

If caps on damages and keeping valid lawsuits out of court do not reduce malpractice rates for doctors or the premiums that you and I pay for health insurance, what does it do? According to the Columbia Tribune and Kansas City Business Journal, it lines the pockets of insurance companies.

Family health care premiums for employer-provided insurance in Missouri will have risen an estimated 3.6 times faster than workers’ earning from 2000 through 2009, according to a Families USA report.

Family health insurance premiums for employer-provided coverage will have risen 82.5 percent in the period, whereas median earnings have risen 22.8 percent. . . .

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Families USA said that higher insurance premiums have been coupled with "thinner" coverage and higher deductibles, copayments and co-insurance.

Pollack blamed rising premiums on "wasteful heath care spending, an almost-unregulated insurance market, a dramatic drop in competition in the insurance market and costs shifted from the uninsured to the insured, termed a ‘hidden health tax.’"

In Missouri, those with employer-provided health care are paying more money for less coverage. . . even though Missouri passed dramatic tort reforms in 2005. According to the Columbia Tribune, after the tort reform passed, medical malpractice insurance companies increased their profits of couple percent to nearly a 25 percent return on investment.

While the insurance companies make money, malpractice victims will not see their right to a day in court.

"Effectively, the courthouse door has been slammed in their face by the non-economic cap put on in Missouri," [said a Missouri attorney] who represents plaintiffs in medical malpractice litigation. "What was pushed as stopping the windfall for the plaintiffs has turned into a windfall for the insurance companies."

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With the cap in place on economic damages, little can be recovered when the plaintiffs are children, nonworking mothers, the retired and the disabled because there are no wages or long-term earnings involved in the computation of what can be recovered.

In Missouri, tort reformers have placed almost no value on the life of children, stay-at-home moms, the elderly and the disabled. Isn’t the life of a stay-at-home mom worth as much (if not more) as a corporate executive? In a Missouri medical case, it is not. What’s wrong with this country when legislators bow down to lobbyists at the expense of mothers, children, the disabled and the elderly.

Unfortunately for one insurance lobbyist, he learned his lesson too little too late. Frank Cornelius wrote a piece entitled, Crushed By My Own Reform, which was published in several major newspapers including the New York Times and the Dallas Morning News. My citation comes from the Dallas Morning News, October 10, 1994, Monday, HOME FINAL EDITION, at p. 13A.

In 1975, I helped persuade the Indiana Legislature to pass what was acclaimed as a pioneering reform of the medical malpractice laws: a $500,000 cap on damage awards, and elimination of all damages for pain and suffering.

I argued successfully that such limits would reduce health-care costs and encourage physicians to stay in Indiana _ the same sort of arguments that now underpin the medical industry’s call for national malpractice reform.

Today, from my wheelchair, I rue that accomplishment.

***

The cost of this cascading series of medical debacles is painful to tally:

. I am confined to a wheelchair and need a respirator to keep breathing. I have not been able to work.

. I have continuous physical pain in my legs and feet, prompting my doctor to hook me up to an apparatus that drips morphine. My pain used to rate a 10 on a scale of 1 to 10. Now it’s about a 4.

. Twice, I have received last rites from my church.

. My marriage is ending, and the emotional fallout on our five children has been difficult to witness, to say the least.

. At the age of 49, I am told that I have less than two years to live.

My medical expenses and lost wages, projected to retirement age if I should live that long, come to more than $ 5 million. Claims against the hospital and physical therapist have been settled for a total of $500,000 _ the limit on damages for a single incident of malpractice.

***

The kicker, of course, is that I fought to enact the very law that limits my compensation. All my suffering might have been worthwhile, on some cosmic scale, if the law had accomplished its stated purpose. But it hasn’t.

Indiana’s health care costs increased 139.4 percent from 1980 to 1990 _ just about the national average. The state ranked 32nd in per-capita health care spending in 1990 _ the same as in 1980.

It’s understandable that the damage cap has done nothing to curb health-care spending; the two have almost nothing to do with each other.

***

The prospect that these reforms" will be enacted is frightening. Make no mistake, damage caps are arbitrary, wholly disregarding the nature of the injury and the pain experienced by the plaintiff.

They make it harder to seek and recover compensation for medical injuries; extend unwarranted special protection to the medical industry; and remove the only effective deterrent to negligent medical care, since the medical profession has never done an effective job of disciplining negligent doctors.

Medical negligence cannot be reduced simply by restricting consumers’ legal rights. That will happen only when the medical industry begins to effectively police its own.

I don’t expect to live to see that day.

We should not make the mistake that Frank Cornelius made. We should not give up our constitutional rights to protect ourselves from some imaginary boogeyman. Stand up for your rights. Protect yourself and your family.

3 Comments

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  1. Facebook User says:
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    This is not right.

  2. Mike Bryant says:
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    Very good review of all of the reasons our rights aren’t just important, but they are vital. The test of society is how it treats the group that you point out truly needs to be protected. This message needs to continue to get out. nice work

  3. Jim O'Hare AIC AIS VP med mal claims says:
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    There is too much med mal- period. Most of it caused by fatigue of communication breakdowns, but this is another discussion.

    I cant and dont buy the concept that 200,000 patients are killed each year from med mal. I know that only 3-4 % of med mal turns into litigation. Anyone disagree? So how is it then, that there are about 190 thousand cases of med mal unattended, that do not turn into lawsuits?

    We are a sue happy people and I cant drive to church w/o seeing 2 – WhocanIsue.com billboards. Think about the numbers for a second.

    Sad case from the Indiana legislator, but no mention about the case. Why?

    RE caps- I am ok with a cap, but only for pain and suffering. The above legislators economics should be what they add up to.The real flaw in the argument is that recovery for any case is limited to the coverage available. That is a cap.

    I am good with access to the courts and a trial by jury. Should the defendant have his rights protected as well, via a jury of his/her peers? I am assuming that we agree that Docs dont get them.- use your own dictionary for peer. Maybe Blacks?
    regards jim- good discussion