http://www.digitaljournal.com/article/287758

Op-Ed: Time for Tort Reform?

Posted Feb 18, 2010 by Carol Forsloff
In the light of medical malpractice and the health care debate, is it time for tort reform? The debate often gets ugly for lack of information, so let's examine the facts.
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Tort reform is a partisan debate and part of an ongoing discussion on health care in the United States that continues to get ugly. Obama has been asked to shelve tort reform in the health care debate because the discussions are heated enough. After working on both sides of the fence, plaintiff and defense and for judges too, as a forensic expert for ten years in life care planning and rehabilitation, I learned from experience how awful it would be without advocates in the legal system to help people who have been injured or killed through medical malpractice. Tort reform? What is needed is an overhaul of a system where the big boys win most of the time.
A recent story on Digital Journal reveals how medical malpractice happens and how folks try to cover it up. In the course of beginning this article yesterday, I considered my own experience this morning after reading Salim Jiwa's article today. But my personal example, as horrific as it was at the time, did not cause me to lose physical function for years. That's what often results with those who suffer from incidents far too frequently than most folks understand in their cry for tort reform.
Those opposed to tort reform believe that plaintiff attorneys in part cause the high costs of medical care in the United States with their exorbitant demands for awards. They cite cases that are sometimes in the news, that cause the everyday citizen to use them as examples in the course of arguments in favor of tort reform. Many people might remember the "McDonald"s coffee" incident some years ago. It was a dramatic case covered by the news media almost daily for weeks, while the "rest of the story" was not. Here is that story right now.
To summarize first here are the initial facts as newspapers printed the story. An elderly woman was given a hot cup of coffee that dropped into her lap. She claimed she had been injured by the hot coffee and was given an award by a jury that totaled in the millions. The media intimated the award was outrageous for just spilt coffee, than had talking heads continue the story by making fun of the victim as well. But there's far more to the story than that.
It turns out the coffee was scalding hot, beyond that of the ordinary hot cup of coffee. The coffee poured into the woman's lap, and as a result of severe burns, she was unable to walk and had to use a wheelchair for mobility. She had severe pain as well. According to the details spelled out in the case in legal archives, Stella Liebeck, age 79 at the time, was severely burned as a result of the hot coffee spill. She wasn't diving at the time, just attempting to remove the plastic lid from the cup. Her sweatpants absorbed the coffee, holding most of the scalding coffee close to the skin. An examination by a vascular surgeon determined Liebeck had full thickness, or third-degree burns, over 6% of her body. She was hospitalized for eight days for treatment, including skin grafting.
Liebeck asked McDonald's to pay her medical bills, attempting to settle her claim for $20,000. McDonald's refused, citing other cases of people who had been burned by the coffee. In other words, they knew the coffee was too hot, but used this knowledge as part of a defense, that folks recover; and it isn't so bad. McDonald's had said their coffee was at 185 degrees, and people wanted it like that.
The case was appealed, and as a result took some time to resolve. The initial jury award was $200,000 in compensatory damages, reduced by 20% because Liebeck was found 20% responsible for what happened. The jury also gave an award of $2.7 million in punitive damages. That amount equals two days of McDonald's coffee sales, according to calculations of coffee sales by this large fast-food restaurant chain. A trial court eventually reduced punitive damages to $480,000, which was three times the compensatory damages given at the time of the first jury trial. This followed the judge calling McDonald's conduct "reckless, callous and willful."
What many people don't know, or fail to understand, is that plaintiff attorneys don't usually win their cases nor are most of those cases frivolous. Plaintiff attorneys have to foot the bill themselves for experts and for costs, including paying some medical bills. Usually the insurance companies win cases, because they have the big bucks to hire expensive experts. In the case of many personal injuries, insurance companies will keep cases going for an extended period of time, because they can afford to, then offer a small award to get rid of the case. By that time the victims, because that's what they become, are so desperate they will settle their cases for far less than it is worth, often less than what their actual future medical costs would be and their lifetime vocational losses as well. I know that from reading the documents to prepare to testify in cases for deposition or in court. My work was considered objective enough that I was used several times as an expert by judges, or by both plaintiff and defense to be fair, because I believed like everything else, the truth comes out in time. Experts who manipulate the truth have trouble remembering their original story, so it's best not to lie at the outset. But what I have found is the rule not the exception: it's the big guys who win, not the plaintiffs; but without the protection of attorneys, there would be far less compensation for those who have suffered injuries and far less concern about medical malpractice than there already is.
Medical malpractice, as common as it has been found to be, is often protected by doctors themselves, all while they complain about their high insurance rates. Try getting one doctor to testify against another in a malpractice case. Attorneys often have to get experts from outside an area, causing their case to be less credible in the eyes of a local jury, because no local doctor wants to betray a fellow physician in matters of medical malpractice.
So stories of medical malpractice awards and the need for tort reform that come from conservatives usually don't provide the important details which are these: the big corporations have the money to win, backing doctors who either won't admit mistakes because of premium rate problems or won't testify against those who commit errors. This leaves the injured party with only an attorney and the right to sue as protection against error. There are numerous myths and stories over the matter of tort reform that are best found by reading the facts.
A very important detail must be underlined about lawsuits and costs. The ordinary person becomes fearful when threatened with a lawsuit. Folks will threaten to sue lots of times, but they have to demonstrate losses to win. Many attorneys disregard plenty of cases like that. The usual case, involving libel or slander, is often dismissed or the damages small, if given, because no real injury is found, such as loss of money damages or significant pain, emotional or physical, that gets in the way of one earning money. Compensatory damages must be present for punitive damages to be awarded.
Tort reform? Perhaps so, in some instances, but frivolous cases usually don't get far; and again the public usually doesn't get the inside information on the cases cited in the press. An overhaul of the entire system with better peer review from doctors on medical malpractice would go far to correct the problems of medical malpractice and victimization, as well as the costs to consumers; and the recognition that insurance company profits, which continue to soar, come from someplace; and it isn't their losses. High costs occur from administrative overhead, including significant cases of medical malpractice, since it has also been found that frivolous cases seldom receive awards.
Interestingly enough, some of the backers of tort reform have had lawsuits themselves. One involving George Bush and his daughters can be found in the archives of legal cases in Texas. Bush sued an insurance company for damages over a minor fender-bender. This occurred just a short time before his election as President of the United States. The award was about $2500, but what were the administrative costs?
And what about ABC's John Stossel, who loves to talk about the need for tort reform? When a pro wrestler hit him in the face when Stossel implied pro wrestling was a fake? He sued the fellow for $200,000. Stossel and Bush are just a few of the folk who have used the justice system to support their claims while denouncing the same rights for others.
So should Obama back away from tort reform on health care legislation? Given the lack of information by the public, as noted by the McDonald's case that continues to be cited by conservatives in hyperlatives, perhaps it is best to handle the issue within changes to specific legislation, namely review boards for doctors where findings are passed along to other medical professionals, where insurance companies are severely punished for the lies they tell to cover up their wrongful behavior and for those on the plaintiff side who lie for awards to be severely punished as well, with the threat of lost licenses to practice perhaps. A system so unequal and so predominantly in favor of the corporations and attorneys needs plaintiff attorneys to protect the innocent, and making them the fall guys for the problems, doesn't solve the issues of medical malpractice and the high costs of health care in the United States.