The current mantra of medical malpractice tort reformers is that medical malpractice reforms (i.e., limiting or eliminating the right of innocent victims of medical negligence to obtain fair and just compensation for their serious and often permanent injuries and losses) are “necessary” in order to “contain” rising health care costs.
Then And Now
Interestingly, most of the initial medical malpractice tort reforms that were enacted many years ago were in response to the health care industry’s unsupported but often-repeated plea that medical malpractice reforms were necessary in order to address the affordability of increasing medical malpractice insurance costs, coupled with the health care industry’s unveiled threat that those states that did not promptly enact restrictive medical malpractice reforms that harmed the most seriously injured victims of medical malpractice would suffer a crisis in health care in their states due to doctors fleeing to states that “protected” doctors by passing medical malpractice tort reforms that relieved negligent doctors from being fully responsible for their negligent acts and omissions.
The strategy behind the medical malpractice “tort reform” campaign financed by wealthy medical malpractice insurance companies and their organized, powerful, and motivated insureds that protect their financial interests at the expense of medical malpractice victims (who are a disparate group scattered politically, geographically, and socially) is to deflect the public’s focus on addressing and fixing the major causes of medical malpractice (such as incompetent and/or dangerous medical providers whose harmful activities are not timely investigated and curtailed by licensing boards, employers, and are sometimes cloaked in a veil of secrecy and protection by complacent or colluding colleagues) and to promise that consumers will “save money” by acquiescing to proposed medical malpractice reforms that the public believes will never personally affect them or their families (i.e., the misplaced belief that they will not become victims of medical malpractice themselves).
Medical malpractice tort reform proposals take many forms: random caps (limits) on the amount of noneconomic damages (pain, suffering, mental anguish, disfigurement) that disproportionately affect the most seriously and permanently injured; pre-suit notice requirements and mandatory preliminary reviews by medical malpractice review panels that unnecessarily and substantially increase the costs of litigation for medical malpractice victims and often result in victims of clear malpractice who suffered less severe injuries being unable to find a medical malpractice lawyer to take their case; raised evidentiary standards that require medical malpractice victims to prove their claims to a higher standard than victims of other negligence (some states require proof by “clear and convincing evidence” of medical negligence before medical malpractice victims may recover damages from negligent medical providers yet victims of motor vehicle collisions in those same states need to prove negligence by the much lesser “more likely than not” standard); restrictions on the type and qualifications of medical experts who may testify on behalf of medical malpractice victims, including restrictions on the geographic area where the expert maintains a clinical practice, which severely limits the pool of qualified experts who can testify on behalf of medical malpractice victims and thereby increases the costs for expert testimony; protecting the results of formal investigations into unexpected injuries suffered in hospitals from disclosure to the victims of medical malpractice (i.e., so-called “peer review” investigations into the cause of “adverse events” that unnecessarily harm patients, which are conducted in the ordinary course of business but are considered confidential and privileged and are protected from disclosure by federal and state laws); requiring medical malpractice victims to provide the medical providers who negligently harmed them with signed authorizations permitting the defendants’ attorneys to meet with and discuss the victims’ medical conditions and medical records, ex parte, with the victims’ other health care providers; etc.
Clearly, the costly results of medical malpractice in the United States can be substantially reduced by reducing the incidence of medical negligence. Establishing minimum standards and enforcing polices, procedures, and protocols that reduce the incidence of hospital-acquired infections, reduce the likelihood of surgical mishaps, and effectively weed out incompetent health care providers and known repeat medical malpractice offenders following prompt and thorough investigation into their negligent wrongdoing would go a long way in not only reducing medical malpractice costs throughout the United States, but would also measurably improve the quality and quantity of health care in the United States. Nonetheless, the resources to adequately and fairly compensate the innocent victims of medical malpractice must be maintained and protected so that when negligent medical care causes serious injuries and harms, the responsible parties are solely held fully accountable and the victims of medical malpractice and their families are not made to suffer the financial burden of the avoidable harms (and state and federal resources are not substituted for the financial responsibility of the negligent wrongdoer).
The Bottom Line
Why are medical providers granted special privileges and financial protections from being held responsible for the harms they negligently cause to others? The answer may be that medical providers are a highly-educated, highly-motivated, politically active, and well-organized group whose power and influence cannot be matched by the disparate victims of medical malpractice, who had no choice in becoming a medical malpractice victim. Other than plaintiffs’ medical malpractice lawyers and some nonprofit consumer protection groups who help educate, protect, and assist victims of medical malpractice, who represents and speaks up for the innocent victims of medical negligence in the U.S.?
If you, a family member, a loved one, or a close friend may be the innocent victim of medical negligence in the United States, you should promptly consult with a medical malpractice lawyer in your state who may investigate your medical malpractice claim for you and represent you in a medical malpractice case, if appropriate.
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