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Mark Bello
Mark Bello
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Tort Reformers – Will You Pay the Price of Your Own Advice?

5 comments

Attention-grabbing content can be as simple as posting a comment on Facebook, writing a blog or article, or as complicated as writing a novel or song.  I have written and read many blogs and articles relating to tort reform, but I have never heard about tort reform in a song until now.

Drawing upon Nashville’s music history, three professional songwriters (led by Ryder Lee, a law student at the Belmont University School of Law and founder and former member of The Lost Trailers) helped write “Tort Reform – The Song.”  The words in this song reminded me of the sad story of Frank Cornelius.  Although his compelling story is not new and much has been written, it recently came across my desk.  I encourage you to read “Malpractice Cap Haunts Lobbyist Who Fought For It”.

To summarize the article, Cornelius was an Indiana lobbyist whose clients included the Insurance Institute of Indiana.  In 1975, Cornelius helped pass legislation placing a $500,000 cap on compensation for patients injured by medical malpractice.  The law eliminated all damages for pain and suffering.  Cornelius successfully argued that these limits were the only way to reduce health-care costs and encourage physicians to stay in the state.

Cornelius later became a victim of his own success. In early 1989, he underwent a routine arthroscopic surgery on his left knee. When the surgeon dismissed his complaints of significant pain, Cornelius consulted a second surgeon; the diagnoses was a degenerative nervous disorder caused by trauma or infection associated with the surgery.  Although there were no allegations that Cornelius’ condition was the result of medical negligence, it was made drastically worse by later incidents of negligence.

A few months after the initial diagnosis, Cornelius said his left leg was further injured when a physical therapist misread instructions on a medical machine and shot a huge current of electricity through his already injured leg.  A year later, another doctor used the wrong instrument during a medical procedure that left Cornelius with several holes in the main vein from the legs to the heart. If his wife had not acted quickly to alert hospital personnel, Cornelius would have bled to death.  The responding physician punctured Cornelius’ left lung.

The series of medical errors left Cornelius confined to a wheelchair, living on a respirator, and hooked up to morphine drips to control the pain.  Although medical expenses and lost wages alone exceeded $5 Million, claims against the hospital and physical therapist were settled for a total of $500,000 due to a limit on the damage caps that he earlier had helped become law.

Let’s examine how tort reform affected the cost of medical care for Frank Cornelius.  Remember that Frank’s recovery was limited to $500,000 even though he had in excess of $5 Million in medical bills.  Thus, assuming Frank had health insurance, the health insurance carrier was required to pay $5 Million in treatment.  Without Indiana’s onerous tort reform, the health insurance carrier can subrogate against the liability carrier and be reimbursed the amount it expended.  If there is enough liability insurance, the health insurance carrier can recover the entire $5 Million.  Let’s assume Frank had no insurance; in that case, the hospital is left “holding the bag.”  In either scenario, because of tort reform, the healthcare industry picks up the tab.  But wait, it gets even worse!  Unrealistic and woefully insufficient compensation left Frank destitute and on Medicaid.  So, in the end, the taxpayer picks up the tab.  Someone please explain to me, perhaps I’m too dumb to understand, just how does “tort reform” save the healthcare industry money?  It didn’t in this case and it never will.  All it does is reward the guilty and severely punish the innocent.  Frank Cornelius is a tragic example.

In its attempt to protect the insurance industry, tort reform shifts the costs of treatment from the responsible negligent party to one of four “victims”: 1. The injured person.  2.  The health insurance carrier.  3.  The service provider (hospital or doctor, diagnostic test or therapy facility) 4. The taxpayer.  Yes, my friends, when victims, like Frank Cornelius, endure a lifetime of pain and suffering and inability to work, it is the taxpayer who picks up the tab in the form of Medicare and Medicaid.  Again, how does this make healthcare less expensive?  Heal me, o tort reformers; show me the error of my ways.

In his long ago article, Frank Cornelius said,

“The damage cap has done nothing to curb health-care spending; the two have almost nothing to do with each other.  Damage caps are arbitrary, disregarding the nature of the injury and the pain experienced by the plaintiff. They make it harder to 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.”

Shortly after the article was published, Cornelius died—broke; an intentional overdose on morphine.  By then, Medicaid would no longer cover the cost of the device that dispensed his morphine.  Like the song says – Frank Cornelius jumped on board without thinking of the consequences.  Fourteen years later, he paid the ultimate price of his own advice.  He paid with his life.

Frank Cornelius’ story should serve as a reminder that restricting victims’ rights will not reduce healthcare costs.  It will increase incidents of medical negligence.  Tort reform is a well-organized, multi-faceted marketing effort by liability insurance companies, big corporate, big pharma, big tobacco and big medical to fatten their coffers at the expense of the victims of corporate malfeasance.

These groups hate accountability; they lobby legislators using people like Frank Cornelius and try to persuade them to impose damage caps.  They are often successful as they were in Indiana, so many years ago.  When there is no accountability, corporations can worry less about safety and more about profits.  I have nothing against healthy corporate profits; nothing against businesses making money.  But when it costs innocents money, prevents or limits accountability and destroys safety and justice, I must speak out.  Do we want to sell our safety and well-being to big business?  Do we want to support laws that limit compensation?  Do we, under any circumstances ever want to find ourselves in the same tragic predicament as Frank Cornelius?  We can’t continue to make that mistake.   We are better than that.

Mark Bello has thirty-six years experience as a trial lawyer and fourteen years as an underwriter and situational analyst in the lawsuit funding industry. He is the owner and founder of Lawsuit Financial Corporation which helps provide cash flow solutions and consulting when necessities of life litigation funding is needed by a plaintiff involved in pending, personal injury, litigation. Bello is a Justice Pac member of the American Association for Justice, Sustaining and Justice Pac member of the Michigan Association for Justice, Member of Public Justice, Public Citizen, the American Bar Association, the State Bar of Michigan and the Injury Board.

5 Comments

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  1. jc says:
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    Mark, you forgot to mention another entity who is affected by medical malpractice tort reform – – -plaintiff attorneys. Yes sir, tort reform also caps the juicy 40% contingency fee greedy plaintiff attorneys charge their clients. 40% of $500K is $200,000 for the plaintiff attorney. But 40% of $5,000,000 is a whopping $2,000,000 for the plaintiff attorney, all for doing the same amount of work! Is it any wonder that Mark Bello is against tort reform? Is it any wonder that Fiancial Corp. and plaintiff attorney lobbys spend millions of dollars to elect Democrats who support the same line? Remember that juicy 40% contingency fee is on top of court costs. We could eliminate all this plaintiff attorney greed and pay more money quicker to deserving patients if we eliminated the corrupt medical legal justice system and had medical courts! Stand up for the patient, Mark Bello, instead of your own billfold and support medical courts!

  2. John Day says:
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    JC – your comment makes little sense, which explains why you did not use your name. Lawyers who can no longer do medical malpractice work because of unreasonable laws that hurt patients will simply do something else – that is the way the economy works. The idea of punishing lawyers by punishing patients is sort of foolish and, quite frankly, mean.

  3. jc says:
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    John Day – -I have first hand knowledge and experience with our medical malpractice system. It is grossly inadequate for the victims of the system which includes patients who are harmed and innocent docs who are accused of medical malpractice. The biggest stumbling blocks to reform are the plaintiff attorneys, who it can be assumed are blocking reform for their own personal gain. In a typical worker’s compensation case, a lawyer is not needed. Why should a lawyer be needed in a typical medical malpractice case? I want months not years to making decisions, and I want deserving patients to get awards and not plaintiff attorneys.

  4. Brett Emison says:
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    Dr. Cox,

    You’ve been ’round and ’round with several authors on this site. Despite the fact that your comment has nothing to do w/ Mr. Bello’s post, with due respect, your assertions are just not based on actual fact. Let’s take a closer look.

    (1) Worker’s Compensation. Work comp cases routinely involve attorneys. Anytime an injured victim is dealing with an insurance company, the injury victim will need competent representation to ensure his or her rights are protected. Any claim that lawyers aren’t necessary for work comp claims is just factually wrong.

    (2) You want claims resolved in months, not years. Me too. In fact, every plaintiff’s lawyer wants cases resolved in months, not years. As you’re so fond of pointing out, lawyers for injured plaintiffs do not get paid until the client actually receives compensation. If the case drags on for years, the plaintiff’s lawyer does not get paid for years. This is why so many insurance companies engage in frivolous defenses and unconscionable delay tactics. The injured plaintiff is likely unable to work and facing stacks of medical bills. The plaintiff’s lawyer is working without payment – while taking on all of the risk of funding the litigation. All while the insurance company delays, delays, and delays while holding on to money it should have provided the injured victim before the lawsuit was filed.

    (3) The contingent fee system prevents frivolous lawsuits – it doesn’t promote them. Plaintiff’s attorneys don’t file frivolous claims. As said above, lawyers for injured plaintiffs don’t get paid unless they win. By definition, it’s impossible to win a frivolous case. If lawyers take frivolous cases on a contingent fee, they go bankrupt and starve. Insurance companies – to the contrary – have every incentive to delay the case with frivolous defenses.

    (4) Insurance companies and other corporate defendants purposefully delay litigation. There is rampant abuse by defendants who engage in frivolous defenses solely to delay and prolong litigation. Insurance companies hold onto the money until forced to pay injured victims by a jury. Insurance companies have a lot of money while injured victims often have none. Or even less than none. Many injured victims cannot work and have incurred substantial medical bills. Insurance companies use this leverage to try and force unfair settlements in which the insurance company refuses to pay for all of the victim’s loss.

    Defense lawyers have a similar incentive. The plaintiff’s lawyer doesn’t get paid a dime until the plaintiff actually recovers something. Defense lawyers, however, are paid by the hour – providing a substantial incentive for not only the insurance company, but also its lawyers, to overwork and over bill the case in order to delay resolution and recovery by the injured victim.

  5. jc says:
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    Brett: To say that plaintiff attorneys never file frivolous suits is loony. As I have said many times, 85% if cases that go to court are won by the defendant doctor. 80% of the cases filed against a doctor are eventually dropped without payment. In that basket of 80-85% of cases that are terminated without payment are a lot of frivolous cases. Like the case I was sued on regarding a typographical mistake made after the typist put my report on the electronic medical records. I got sued for 6 years for a typo which had no effect on the patients outcome. That is a frivolous case and it was thrown out of court without payment.
    As for delays in litigation, my colleagues and I see that from plaintiff attorneys all the time. The plaintiff attorney puts money into the case and does discovery and soon discovers that it is a frivolous case. So instead of the plaintiff attorney dropping the case, he drags it out and asks for a settlement. He is trying to mitigate his losses so he drags it out to the court house steps. This often happens when the plaintiff attorney loses a case at trial. The plaintiff attorney has dumped a ton of money into the case and a not guilty verdict means he gets nothing. So he appeals the case hoping a liberal court of appeals will reverse the decision and send it back for re-trial. So there is a real problem with time delays in these cases. That is why we need specialized medical courts. This would fulfill the plaintiff attorneys and patients and doctors needs for a quick verdict and judgement. The way these courts should be constructed is to have an RN, a family medicine doc and a specialist doc looking thru the chart testimony from both the doctor and patient. If either the doc or patient loses, they can appeal to the court system, but the loser of the medical court verdict pays all subsequent court and legal costs and delay damages. Fast, fair and quick!