A California woman recently won a $22 million medical malpractice lawsuit against the Palo Alto Medical Foundation Group after a medical procedure left her a quadriplegic. In October 2006, the woman was seeking medical treatment for migraines when doctors discovered an abnormal vein in her brain. A cerebral angiogram, a procedure that involved injecting dye into the vein, was ordered to check the blood flow to the brain. During the procedure, the woman suffered a stroke and went into a coma. Now she is confined to a wheelchair and suffers from slowed speech. She requires round-the-clock care; this single mother of two can no longer work or provide for her children as she once did; she has no feeling and cannot move her body below the neck. Her medical care costs are estimated between $300,000 and $350,000 per year.
The lawsuit alleged that not only was this unfortunate woman not informed of the risks, but that the procedure was unnecessary. Expert witnesses testified that the angiogram was not medically necessary; it provided no benefits for the doctors to better assess the woman’s headaches. The jury awarded $2 million for past economic losses in earnings and past medical expenses, $14 million for future economic losses and care, and $6 million for pain and suffering. This represents the jury’s best attempt at fairly compensating a woman for her past, present and future care, and for being trapped in what is, essentially, a useless body. And now….the rest of the story….
Under California Law, the pain and suffering award will be capped at $250,000. This means that the woman will only receive 4% percent of the jury award for her pain and suffering. To add insult to injury, the California’s Medical Injury Compensation Reform Act (MICRA) of 1975, limits how the health care provider has to pay for the damages they cause. In a medical malpractice case, MICRA allows health care providers to make payments over a set period which means they can pay back the future damages they cause over the rest of the life of the victim, rather than the full award when the case settles. If that isn’t enough, in the event the victim dies earlier than expected, the balance of the future money awarded to the victim goes back to the doctor or hospital. It does not go to the victim's family.
This is what the citizens of a state get when their elected officials sign on for "tort reform”: Because corporate influence (money) has found its way into politics and politicians pockets, immunities and protections are provided for the negligent perpetrators along with inadequate compensation for seriously injured, disabled, and innocent victims. Negligence can cause critical injuries and permanent disabilities that have life-long, costly consequences, yet critics of the medical malpractice justice system are quick to suggest that many verdicts are too large and unjust. Do they ever stop to consider the value of human pain and suffering, the loss of normal enjoyment of life? Do they ever put themselves in the shoes of the victims? Damage caps deny victims of fair compensation. Caps minimize the value of human life and survivor suffering; this makes it easy and affordable for the medical community to cut costs and take risks with patient's lives; $250,000 is insignificant in the context of ruining someone’s life. Healthcare professionals aren’t being held accountable for wrongdoing; insurance companies answer to no one.
Tort reform is not about “lawsuit abuse” or “jackpot justice”; it is not about “frivolous lawsuits”. It is about restricting innocent, seriously damaged, victims from access to justice and limiting their recoveries. The threat of large damages awards is a strong deterrent against wrongdoers; it keeps us safer. If there are limited or no consequences for bad behavior, bad behavior will continue.
Damage caps need to be abolished, all over this country, at both state and federal levels. You, the people, have the power to make a change for justice. Don’t vote for legislators who would allow doctors to hide behind corporate veils, completely immune from responsibility for their actions. Holding them responsible for full and fair compensation forces them to consider safety in the context of its effect on profits. The next time you hear a politician push for “tort reform” and limits on jury awards, think about this unfortunate woman. Don’t wait until you or a loved one loses the ability to enjoy life and able to care for one’s self. It is time that the US Chamber of Commerce, corporations, insurance companies, and other tort reform advocates stop lying to the American people. Together, we must combat and put an end to the deceptive corporate takeover of our precious civil justice system.
Mark Bello has thirty-five years experience as a trial lawyer and thirteen 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 legal finance 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 and Public Citizen, Business Associate of the Florida, Mississippi, Connecticut, Texas, and Tennessee Associations for Justice, and Consumers Attorneys of California, member of the American Bar Association, the State Bar of Michigan and the Injury Board.
@thumbnail.jpg "Mark M. Bello")
Experienced attorney, lawsuit funding expert, certified civil mediator, and award-winning author of the Zachary Blake Legal Thriller Series. The series features super-trial lawyer Zachary Blake handling "ripped from the headlines" legal and political issues of the day. The series currently consists of Betrayal of Faith, Betrayal of Justice, Betrayal in Blue, Betrayal in Black, and Betrayal High, with a sixth Zachary Blake novel due out later this year. To learn more about these topical social justice legal thrillers. please visit markmbello.com. Mark is a member of the State Bar of Michigan, a sustaining member of the Michigan Association for Justice, and a member of the American Association for Justice.
11 Comments
Cilla Mitchell
Good morning Mr. Bello,
A few months ago, Anna Mae Rooks and I met on your blog posting about tort reform and the Texas Medical Board. I got off your blog because I wanted to take matters in my hands considering the 7th Amendment is no longer available for Texans ever since Governor Rick Perry signed the Tort Reform Act in 2003.
Anna Mae Rooks and I got together via phone and finally met. We have teamed up to fight tort reform and all it entails. Both Anna and I are the unintended consequences derived from not being able to get accountability under the law.
Anna Mae Rooks finally found a lawyer in Texas, among the hundreds who would not take her case because of the nature of tort reform. This lawyer was able to see what Anna Mae was saying all along, Dr. Michael S. Linder did in fact kill David Rooks and her case finally has been filed under the 57th Judicial District. Her case is filed against Michael S. Linder, St. Lukes Baptist Hospital and the San Antonio Gastroenterology Association for a preventable death.
The horrific part about this is, when she went to the court house to make sure her case was filed and accessed the county computer data base system, she found three cases mentioned next to Michael S. Linder who had previous law suits against him, two which entailed deaths and were settled out of court. Her case is number four. She came back devastated after she discovered this. Her son would not have suffered a horrible death in the hands of Dr. Michael Linder if the Texas Medical Board did their job, policing after their own.
Unfortunately, in my case, my husband's death can not be avenged in a court of law because of the statute of limitations in this state and the fact that the emergency rooms in Texas are not accountable for anything they do or not do. This will not stop me from getting justice for the death of my husband, Cleveland Mark Mitchell, who was killed by Dr. Javier Andrade who failed to provide the basic standard of care, and is now free to practice freely in New York at the New York Bariatric Group.
The plan Anna Mae Rooks and I have set forth is, we are taking matters in our own hands and will write a book exposing the Texas Medical Board for what it is, "a good ole boys club", who protect their "own", even if their "own" kill their patients.
We will start a blog site next week documenting every step of our fight against tort reform the TMB.
The moral of the story is, Don't mess with women from Texas.
Mark Bello
Go get'm ladies!
jc
Mark and Cilla and Rooks: Tort reform is all about restricting frivolous lawsuits which can go on for years and destroy good doctors careers. I have seen many doctor victims whose cases drag on for years and years even after they have won unanimous jury verdicts in court, because the screwed up judicial system in this country drags out obvious decisions for years. I am currently fighting to have "bad" plaintiff attorneys held accountable for some of these frivolous suits.
Cilla Mitchell
Welcome back jc, sure missed ya.
jc
Glad to be back Cilla: Mark has talked about his tragic outcome. But the case he represents is atypical as 80% of cases that go to court are won by the defendant doc. More typical is the case of the woman who had a normal delivery of a normal child. She sued her OB/GYN because the next day she stubbed her toe when she got out of bed. The OB/GYN had a great reputation and had never been sued. Since he had such a good record, his malpractice insurance premiums were low. But the premiums went up permanently after he was sued, even though he won the case. Ofcourse doctors are virtually prevented from countersuing plaintiffs and their attorneys no matter how ridiculous the claim. Mark Bello wants everyone to have their day in court except countersuing doctors, and ofcourse plaintiff attorneys should always be protected against docs who want to countersue, I guess because Mark Bello feels that plaintiff attorneys are one step above the "little people".
Mark Bello
Dr. Cox I really wish you would stop putting words in my mouth. I publish what I believe, plain as day. It is not necessary or productive to "spin" what I write. I believe, as many constitutional Republicans do, that tort reform is unconstitutional. Take a look at the 7th Amendment, some day. As to your specific criticism in the example you cite, why isn't your criticism directed at the insurance company that made substantial money off this doc for years, then unfairly raised his rates? Why do you misrepresent the doctor's rights here? If he won, and the case was determined to be "frivolous" by the presiding judge, the doctor is entitled to substantial sanctions from the plaintiff and the plaintiff's lawyer. We don't need "tort reform" to get sanctions. Perhaps, as usual, you're not telling the whole story. Your bias continues to shine brightly in all of your comments. What writing of mine has EVER suggested that plaintiff attorneys are "above" anyone? Everything I write is about the constitutional rights of VICTIMS of negligence. THEY, and only they, are what counts for me.
Cilla Mitchell
jc, If I didn't know better, I would bet the farm you were one of the TMB board members Governor Rick Perry appointed as a political favor for kissing his gluteal maximus. Let's see, he appointed a geologist, a school teacher, a corporate head hunter, a real estate attorney, and you would have fit in the mix ever so nicely.
jc
Mark: Victims of medical malpractice trials include physicians because they win 80% of the cases brought against them. As for "sanctions" - -they never work because judges will not enforce them! We desperately need tort reform and the first thing we should do is allow doctors to countersue plaintiff attorneys who file frivolous suits. Let a jury decide whether the suit was frivolous or not and if it is, allow the doc to pursue punitive damages against the plaintiff attorney. This simple act would cut the number of frivolous malpractice lawsuits by 50%. It would also clean out the bad attorneys in the plaintiff's bar. Lets face is, lawyers and the Bar associations do nothing to police the legal profession against incompetent plaintiff attorneys.
Mark Bello
Dr Cox: You make the same old tired arguments. Lawyers are the bad guys; doctors are the good guys. Except when they are NOT. I'm sorry you had some bad experiences; you throw out percentages like they are fact. And, you are not including the percentage of cases that are settled. Those are "successful" and should be included in your ridiculous percentage quotes. Here is a FACT: Lawyers win or settle the vast majority of cases they file. They cannot afford to file "frivolous" cases; malpractice cases are too expensive to pursue for "frivolous" results. Some fail because of after discovered evidence favoring the doctor or because the jury got it wrong; those anomolies should be included in your 'percentages'. Lawyers who lose pay sanctions, most of the time; lawyers win or settle these cases most of the time. You can keep denying both facts, but they are true. What are doctors and the medical associations doing to police "bad doctors"? Read my recent post about a tragic, preventable, result in Michigan. More tort reform will lock legitimate cases out of the system and allow bad doctors to cause results similar to that suffered by the innocent child featured in that post. Lawyers don't ask for a free pass on malpractice; why do doctors? Grow up and face the music when you screw up.
jc
Well let's see Mark - -70% of malpractice suits which are filed against doctors are dropped with no payment! 80% of malpractice cases which go to court are won by the defendant doc. Would you fly on an airline that crashed and burned 80% of the time? In my years of experience, I have never heard of a lawyer being forced to pay some kind of sanction for a frivolous malpractice suit. And plaintiff attorneys can drag out ridiculous malpractice suits for years and years in an attempt to extort money from the doc. Plaintiff attorneys do get a free pass on malpractice, as no state allows docs to countersue plaintiff attorneys after the docs win a malpractice case. With an 80% failure rate you would expect the ABA to do something!
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