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While we at Lawsuit Financial believe, strongly, that Michigan has had more than enough tort reform, House Republicans are considering yet another round of Medical Malpractice reform. If passed in its present form, this unjust legislation would virtually eliminate a patient's or a patient's family's ability recover damages from a negligent doctor. An alleged "physician shortage" is one reason that sponsors of the Draconian legislation provide in support, however, even most doctors (including the American Medical Association) agree that there is no such shortage. A 1995 AMA study found that Michigan has just the right number of physicians to serve those in the population that need health care. As more physicians age and retire while the population ages and needs healthcare, the need for physicians will grow, but sources indicate that the increased need will be "modest".

This proposed legislation will give bad doctors a free pass to commit malpractice. One provision, for example, would exempt a physician from being sued successfully as long as he/she "acts with a reasonable and good faith belief" that he/she acted in the best interests of the patient. Tell that to a patient who had the wrong limb amputated by a 'well-intended', drunk or incompetent, doctor.

Michigan has already gone through serious liability reform. Since the 1990's (when Michigan’s previous major tort reforms were enacted in response to a fabricated "lawsuit crisis") the number of medical malpractice lawsuits have dropped dramatically. Since 2004, there have been less than 500 cases pursued, annually, in Michigan.

Recently, a Michigan colleague of mine, John Perrin, wrote a letter to his State Representative, Kurt Hiese, Republican, District 20, representing the city of Plymouth, MI (about 30 miles west of Detroit). In this letter, he shares a powerful, true story about a case he defended in which a six month old girl received horrifically substandard care. Consequentially, the child suffers from cerebral palsy; this child would be unable to pursue a successful malpractice case under the proposed new law. John is a fine lawyer; he has represented doctors and insurance companies for a large part of his career; since 2004, he has represented injured citizens against wrongdoers, including negligent doctors and hospitals. After you read the letter, whether you are a legislator, an attorney, a doctor, a hospital administrator, a businessman, a judge, or an ordinary citizen, decide for yourself whether this proposed legislation is supportable in a civilized society of fair laws. With John's permission, I present the entire text of his open letter to Representative Heise:

Dear Mr. Heise,

I am writing to express my concern regarding certain bills presently being discussed in the House Insurance Committee. These bills are an attempt to expand current medical malpractice tort reform in Michigan.

From 1990 until 2004, I defended medical malpractice actions on behalf of healthcare providers and facilities. In that time frame, I tried many cases. I never lost a case that I should have won and never won a case that I should have lost. Contrary to public lore, juries actually do make sound decisions. When juries fail, our Court of Appeals is equipped with the authority to remedy those problems.

I primarily defended Obstetricians,Gynecologists and Pediatricians. I was the trial attorney in the landmark case, Craig v Oakwood Hospital, where the Supreme Court established standards for the admission of scientific evidence. I was also defense counsel on many other notable legal rulings in our appellate courts which benefited the healthcare industry.

Now, let me share this with you a true story. One of the last cases that I tried involved a 6 month old girl who was seen in a hospital ER in the Detroit area. Her mother had been to several emergency rooms in the prior days with the same complaints; "my daughter is gasping for air". For her fourth and final trip to the emergency room, she was seen at my client's hospital. The girl's mother again explained that her daughter was gasping for air and more recently, had episodes where she would stop breathing.

The little girl was seen by a foreign born and trained physician who was dishonorably discharged from the US Army as a doctor for providing substandard care. Thereafter he attempted to pass but failed his pediatric board certification exam six (6) times. The total time passage from her examination until she was discharged from the Emergency Department was seven (7) minutes. This doctor prescribed cough medicine without taking a complete history or even performing a medical exam.

Less than 24 hours later, while riding in her car seat in the back of her mother's vehicle, the little girl stopped breathing and then arrested. A passing EMS vehicle came to the mother's aid and resuscitated the girl, but she had already suffered extensive brain damage. As it turns out, she had a very serious childhood respiratory virus that could have been treated but she required hospitalization.

The care she received was substandard. Consequently, that child suffered from cerebral palsy and severe cognitive impairments. She would require extensive care over the course of her long life.

Under HB 5670 (the proposed legislation-MMB), that case could have been dismissed if I had obtained an affidavit from the doctor stating that he had a subjective good faith belief that he was acting in that little girl's best interest. If I had succeeded, the cost of that little girl's care would forever fall on the taxpayer.

That little girl would then require Medicaid and/or Medicare funding for decades. The public school system would be required to provide her with physical therapy, speech therapy, occupational therapy and other services until she turned 26 years of age. Thereafter, she would be institutionalized in a nursing home paid for by Medicare until she died at 50 to 70 years of age.

What these bills collectively do is shift the cost of truly negligent medical care from the responsible party, or their insurance company, and onto the taxpaying public. I believe in a society that cares for the elderly and impaired, but this is just ridiculous.

Judges already have the tools to deal with frivolous lawsuits and excessive jury verdicts. Jurors are already very skeptical of most personal injury lawsuits and in reality, jury verdicts rarely reflect the amounts that are paid in settlements reached while appeals are pending. In the case that I described above, a settlement was reached at a fraction of what the jury awarded.

Aside from the cost shifting, HB 5670 would make Michigan a safe haven for doctors like the one I described above. This is just one example; I've seen dozens.

Our current tort reform system is not broken. There are far fewer medical malpractice cases being filed and very few frivolous cases. When settlements are reached with Plaintiff's who received Medicaid and Medicare assistance, these institutions have liens and are guaranteed repayment. The Centers for Medicaid/Medicare Services does not independently pursue negligent healthcare providers for reimbursement on its own.

The fact of the matter is that Michigan has a sound and efficient legal system now that benefits everyone equally.

John M. Perrin P.C.

The Perrin Law Firm

I remind my readers; this is a case that John defended. Defense attorneys always do their jobs and zealously represent their clients, but justice is far more important to them than it is to their clients and their clients' insurance companies. The latter constituencies don't care who they screw as long as they get to keep their (or save) money. And this is what this proposed legislation is about; it is another bailout for Goliath corporations and negligent professionals at the expense of the taxpayers. "Tort reform" has been sought by these wrongdoers for almost 30 years. Bad law, state by state, has been passed, virtually unchallenged by an uninformed citizenry. Only when someone suffers serious injury without ability to pursue the wrongdoer does he/she cry out "injustice".

If you are a Michigan citizen, call, email or write your state representative and state senator. Protest on the steps of the Capital. Tell them if they want to earn your vote, they will vote against this unjust, unfair, legislation. Tell Governor Rick Snyder, if it passes, to veto it, as soon as it reaches his desk. It is high time for the average American, even those not effected by these unjust laws, to stand up and say: "Injustice! Enough is enough!"

Mark M. Bello is the owner and founder of Lawsuit Financial Corporation where he is instrumental in providing cash flow solutions and consulting when necessity of life lawsuit funding is needed during litigation. Mr. Bello has thirty-four years experience as a trial lawyer and 13 years as an underwriter and situational analyst in the litigation funding industry. He is recognized as an expert in this field by ExpertPages.com and ALM Experts. Mr. Bello is a sustaining and Justice PAC member of the Michigan Trial Lawyers Association, Justice Pac member of the American Association for Justice, Member of the American and Michigan Bar Associations, Member of Public Justice and Public Citizen, Member of InjuryBoard, out-of-state member of the Mississippi Association for Justice and a business associate of the Florida Justice Association, Texas Trial Lawyers Association and the Consumer Attorneys of California. His articles have appeared in FindLaw, The West Reporter, The Safety Report, Plaintiff Magazine, Advocate Magazine, Lawyersandsettlements.com, and other fine legal publications.

26 Comments

  1. David Mittleman

    I just don't get why we are even spending time on this but for the sponsor of the bills,a state senator who is a disgruntaled doctor having faced 5 law suits against him and a bad case of 'conflict of interest'....the statistics are that somewhere between 6-10% of the doctors in MI cause 60-90% of the Medical Malpractice...the good doctors of this state shouldn't have to subsidize the ones causing the problem...there may have been a problem back in the 80's or 90's but that has been taken care of by very strong legislation protecting doctors and hospitals....what we need now is not more privilege and immunity for for them but MORE PATIENT SAFETY consideration....thnx for your post Mark

  2. Gravatar for jc
    jc

    Recently a 45 y/o man had a large renal cell cancer on his right kidney. He had the kidney removed and had a rocky post op course, but survived. He returned for a follow up visit out of state and it was discovered that he had a small 1 cm cancer on the left kidney. Alas, that small cancer was seen on a prior CT scan he had that discovered his initial renal cancer prior to his surgery. He then had a partial left nephrectomy to remove the left renal cancer and has done well. End of story? Nope - -gotta get the plaintiff attorneys involved so they get a piece. Our pt contacted the initial hospital and threatened litigation because the initial tumor on his left kidney had been missed. However nothing different would have been done. Had the left renal CA been removed with the right kidney at the initial operation, the patient very well could have gone into renal failure and severely damaged the left kidney and have to be on a transplant waiting list. After years of litigation, the case was eventually dropped. It is this type of frivolous litigation which drives up malpractice insurance costs and the demands that plaintiff attorneys be held accountable for frivolous litigation. By the way, the patient who had renal CA of both kidneys is alive and doing well with his partial left kidney sustaining him with no need for dialysis.I think we need a way of discouraging these frivolous suits and the way to do it is to allow doctors to countersue plaintiff attorneys for frivolous litigation. Allow a jury to decide if the case was frivolous or not. If a jury decides a case was frivolous, allow the doc to sue for punitive damages against the plaintiff's attorneys. But plaintiff attorneys like Mark Bello and Dave Mittleman do not want that type of liability. They see nothing wrong with an 80% plaintiff attorney failure rate at trial and say there is nothing wrong with the tort law system. I just don't get why docs cannot get legislation thru the legislature creating a new cause of action to hold plaintiff attorneys accountable for frivolous litigation. Sure would decrease a lot of frivolous lawsuits.

  3. Gravatar for Jessica
    Jessica

    I read the facts of the case cited in Mr. Perrin's case, JC. Would you call that case "frivolous"? How does the medical profession deal with a bad doctor like that? It seems that you don't police your own very well. Care to comment? And where do you get this "80% failure" number? Is there a study or something? How many malpractice cases are completed successfully, by settlement or verdict? How many instances of medical malpractice aren't even pursued by the victims? Wouldn't those numbers be important if you are going to quote "failure" statistics? Just sayin'

  4. Gravatar for jc
    jc

    Got these jury verdict statistics from Pennsylvania from 2005 thru 2010:

    Year #jury verdicts#defense verdicts %defense verd

    2010 163 133 81.6%

    2009 154 131 85.1%

    2008 161 131 81.4%

    2007 185 153 82.7%

    2006 230 191 83.0%

    2005 223 179 80.3%

    As you can see, defendant docs win about 80% of jury verdicts. The docs may win a higher percentage in rural conservative states and a lower percentage in more liberal urban states, but an 80% defense victory rate is pretty usual and I would not have a malpractice defense attorney with a lower defense victory rate. So if the defense wins 80% of the time, it means that the plaintiff attorneys have an 80% failure rate at trial. Would you fly on an airline whose planes crashed and burned 80% of the time?

  5. Gravatar for jc
    jc

    Jessica: I wanted to completely answer your many questions. Yes the Perrin little girl case was tragic, but rare. Far more common are frivolous lawsuits resulting in jury verdicts as described in my last post. It is impossible to know how many true malpractice cases are never filed. The medical profession deals with cases like this by doing "peer review" with the case reviewed and appropriate disciplinary actions taken. If a surgeon has too many post op infections he will be monitored and corrective action will be taken. It is probably humanly impossible to go thru a three decade medical career without ever making a mistake.

  6. Gravatar for jc
    jc

    Now Jessica, I have some questions for you. We have established that plaintiff attorneys have an 80% failure rate at trial. No other industry in USA has such a high failure rate. Obviously a lot of frivolous malpractice suits are filed and significantly out number legitimate cases. Why wouldn't plaintiff attorneys strive to improve this miserable failure rate? I mean a lawyer can pass the state bar one day and sue a doc the next day. These are complex litigations and are akin to a doc finishing medical school one day and doing neurosurgery the next day. - -no hospital in the country would allow that! Why won't the ABA set up some standards or training program to improve the dismal plaintiff attorney failure rate? Why don't attorneys police their own?

  7. David Mittleman

    JC ur statistics prove how full of @#$% you are...plaintiff attorneys win 100% of the cases they settle for the victims/survivors of MEDICAL NEGLIGENCE that runs rampant in the USA...there are 700,000 docs in the USA who cause 120,000 'accidental'deaths,that is 0.171 'accidental' deaths per doc(courtesy of US dept of Health and Human Services)...the number of gun owners in USA is 80,000,000,the number of 'accidental' gun deaths is 1,500 which is 0.0000188(courtsey of FBI)...so,statistically docs are approximarely 9,000 times more dangerous than gun owners REMEMBER,guns don't kill people,docs do....

  8. Gravatar for jessica
    jessica

    But, JC, you rather casually (and calculatingly) neglect to mention that over 90% of all litigation, including malpractice, settles, favorably to the victim. Thus, your 80% figure refers to those leftover cases that doctors who feel that they did nothing wrong decide to go to trial on. And, by your own admission, they even lose 20% of the leftover cases that they were sure they would win! If they settle all of the other winners (because they screwed up and know they are going to lose) BEFORE trial, and lose 20% of those that they thought they should win, haven't they lost something like 95% of the cases filed? George H W Bush described your math, years ago: "Voodoo Economics". I am not a lawyer; I am not a doctor (as you are), but I sure know when someone is trying to snow me, and you, sir, are twisting the true facts of litigation outcomes to suit your own selfish purposes. I do not want hacks like the one who treated Mr. Perrin's unfortunate client treating me and the fact that this person could obtain a license to practice medicine, without appropriate oversight by your profession, speaks volumes about why we doctors being sued for malpractice. If you stop screwing up and improve the policing of those who do, you will stop getting sued. Instead, you blame the victims and the lawyers and demand another bailout from the legislature, at taxpayer expense. Physician: Heal Thyself!

  9. Gravatar for jc
    jc

    Jessica and Dave: Those statistics speak for themselves, they were picked up from a legal review of Pennsylvania jury trials. I am sorry they do not conform with your ideas. The fact of the matter is that most malpractice cases against docs are dropped with no payment at all (70%) Of the ones that go to court, at least 80% are won by defendant docs. Most of the cases which I see are cases where the patient has a bad result due to the progression of disease and sometimes patient non-compliance. The pt gets upset because of the bad result and goes to an inexperienced plaintiff attorney who sues the docs and years of litigation later the case gets dropped. An 80% plaintiff attorney failure rate says everything that needs to be said about incompetant plaintiff attorneys filing frivolous malpractice suits. Since the legal profession will do nothing against incompetent plaintiff attorneys, I have a suggestion: Allow docs to countersue plaintiff attorneys who file frivolous malpractice suits. This is a great suggestion as it would force the legal profession to adhere to some standards. Plaintiff attorneys would not take every case that walked in the door and we could significantly reduce malpractice litigation. Since both you and Dave say there are no incompetent attorneys just docs, you should have no problem supporting this approach which will allow a doc to have his day in court against the incompetant plaintiff attorney who brought the frivolous malpractice action.

  10. Mark Bello

    Blah Blah Blah Blah Blah Blah Blah

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