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Woman Recovers $25 Million despite Tort Reform Statute

31 comments

A Milwaukee County judge has ruled that the state’s onerous tort reform statute does not apply in the case of a $25.3 million recovery for a woman who lost her arms and legs due to medical malpractice.

On May 24, 2011, a 53-year-old mother of four was admitted to Columbia St. Mary’s Hospital with acute abdominal pain accompanied by a fever. After spending nearly nine hours at the hospital, she was discharged and told to contact her gynecologist in the morning. Upon returning home, the woman reportedly collapsed and was taken to another hospital where she was diagnosed with a septic infection caused by Strep A — the kind that causes strep throat. Due to the spread of infection, she needed all four of her limbs amputated to survive. The woman requires round the clock care; her future mobility will ultimately depend on her ability to adapt to prosthetic limbs.

According to the medical malpractice lawsuit, the doctors who treated the woman recognized signs of infection and included it in her diagnosis, but failed to share this information with the patient. The suit claims that a $25 antibiotic treatment could have prevented the septic infection. At the end of a three week trial, the jury awarded the woman $25.3 million, more than $8.2 million in past and anticipated health care costs and approximately $16.5 million consisted of non-economic damages despite Wisconsin’s statutory damage cap of $750,000. The verdict hinged on a state law, since changed, stating that doctors were required to disclose treatment options that a reasonable patient would want to know. Last year, Gov. Scott Walker signed an informed consent bill lowering the bar for what a doctor must tell a patient. The new law requires that doctors disclose only what a reasonable physician would tell a patient. Had that law been in affect when the woman was treated, it may have been much more difficult, if not impossible, for her to win a medical malpractice case.

The defense asked that the non-economic damages award be lowered to reflect the statute, but Judge Jeffrey Cohen ruled the cap unconstitutional in this case. “It is unreasonable to require [this woman] and her husband, whose lives have been so drastically altered, to bear the brunt of the legislature’s intended ‘tort reform,'” Cohen wrote. An appeal is expected.

According to Wisconsin law, the goal in implementing the cap was to “ensure affordable and accessible health care for all of the citizens of Wisconsin while providing adequate compensation to victims of medical malpractice.” What is “adequate compensation” for giving up all four of your limbs? Who would trade all four limbs for $25 million? Why would the governor of all of the citizens of Wisconsin sign a bill that drastically restricts recoveries to citizens who are so seriously victimized? Why would the citizens of Wisconsin re-elect him (Walker)? Is the state electorate, indeed, the national electorate THAT misinformed?

This outrageously low damage cap underscores the horrors of so-called tort reform. In the past two decades, powerful insurance lobbies have convinced the public to support tort reform claiming that it would weed out frivolous lawsuits and lower healthcare costs. But this case shows that it does the exact opposite. Here we have a woman who suffered unimaginable loss—she is a quadruple amputee. Her case is anything but frivolous. If there is an appeal and the Wisconsin Supreme Court sides with the Scott Walker’s of the world, this woman will become victimized again, this time by tort reform.

The legislature decided years ago, before this woman had her day in court, that $750,000 was enough to make her whole. It’s hard to believe that the citizens of Wisconsin would consider this enough to make up for living a life limbless. Tort reform is a combination of lies and misrepresentations to suit the needs of big business and the insurance industry. Damage caps do not solve a health-care system in crisis, but rather punishes those with the most serious injuries, costing the victim more than just lost earning potential or unpaid medical bills. Many legislators, in many Republican led states, have passed similar legislation; done similar damage to your right to pursue justice.

Many of you voted for Republican leadership in this election, including Wisconsin’s re-election of Scott Walker. This is true despite the fact that corporate profits are at record highs. We are adding approximately 200,000 jobs per month, unemployment is below 6%, and the gross national product growth is through the roof. It is true despite the fact that the dollar is stronger than it has been in years. Interest rates are historically low (haven’t been lower in 30 + years), gas prices are falling, the stock market is at record highs, there is little of no inflation, oil imports are declining, and domestic oil production is increasing rapidly. The wealthiest among us are still making tons of money and there is virtually no inflation. Democratic candidates ran from the President who has presided over this economic boon; some treated him like he had Ebola. His popularity is at an all-time low. CAN SOMEONE EXPLAIN THIS TO ME?

We seem to have a burning desire to vote against our own best interests. Politicians aren’t helping us in the slightest. The Republicans care only about the pocketbooks of their wealthy corporate contributors (the same is true of many Dems) and the Dems do not seem willing to embrace progressive policies, progressive political philosophies, and progressive candidates, many of whom lost elections last Tuesday and many whom helped bring us the terrific post 2008 recovery statistics previously cited. Most of those same Republicans are pro-life, anti-justice/pro tort reform, pro-corporation/anti-citizen, against marriage equality, and “dumb and dumber” on most important issues. They are absolutely contrary to what most polls show America wants, yet we keep voting for these guys. We keep voting against our own interests and agendas. Why? The best example is what the polls show – that the vast majority of citizens are happy with “ObamaCare,” yet we went out and voted for Republicans who swear to repeal it. Huh?!

Despite what you may hear, juries are, typically, conservative in their awards. Given the outrageous failure here (failure to prescribe a $25 medication) and the terrible result of that failure (the loss of all of this woman’s limbs), this jury did the right thing. Why should this victim’s burden of care fall to the taxpayers?

Any attempt to take power away from a jury is an attempt to take power from the citizens of Wisconsin. Placing the reins of justice in the hands of the US Chamber of Commerce and special interest groups only encourages corporations and insurance companies to continue to put profits over safety. And why does a significant majority (some “Tea Party” Repubs are 7th Amendment advocates, but they are a party minority) of Republicans support these anti-citizen reforms? I thought they were the “hands off” party, the party of personal responsibility, the strict support of the constitution party, the party of no-bailouts. Why are they for “bailing out” the insurance and medical industries at taxpayer expense? Why isn’t the 7th Amendment as important as the 2nd? Wouldn’t it be easier to stop the reason for the lawsuits? Wouldn’t it be easier to fix the problem rather than restricting recovery and court access to victims?

The citizens of Wisconsin, with only themselves to blame, should ask their legislators to fix this substantial injustice. They, and ALL citizens affected by these important issues, should pay more attention to the issues and what their elected officials are doing about them. If these officials are acting in a manner contrary to the interests of the average citizen, have the guts and common sense to vote them out of office.

31 Comments

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  1. jc says:
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    As readers of this column know, I strongly SUPPORT TORT REFORM! Wisconsin caps pain and suffering damages at $750K, and her $16.5 million “pain and suffering” award will be reduced if the court of appeals follows the law as written. Besides, Mark, you know and I know that the average doc carries about a million in medical malpractice insurance. After that is gone and the plaintiff’s attorney takes his 40-50% cut off the top! the patient isn’t going to get much–certainly no where near $25 million!
    Which gets us to the real purpose of “pain and suffering” damages. The real reason is not to compensate the rare victim of medical malpractice. The real reason is to try and try and force doctors into settling non-meritorious cases. In 2012, in Ohio, according to state insurance statistics, plaintiff attorneys lost 92.3% of cases decided by a judge or jury. So plaintiff attorneys are frequently stuck with cases that are going to be a big out of pocket expense to them. Their only way of recouping their expenses is to try and get the doctor to settle the case, otherwise, if they go to court, they lose! So in non-tort reform states, the plaintiff attorney will prevail upon the doctor to settle the case before trial because the trial jury May award some outlandish figure like this case illustrates and, after browbeating the doctor, the doctor often settles. Keep the caps, make the plaintiff attorneys work for a living!

  2. Mark Bello says:
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    Doctor Cox: If there is already a policy limits cap and the “patient isn’t going to get much”, why the need for a statutory cap? How will a lady with no limbs live for the rest of her life on $750,000 or $1,000,000? If the doctor was negligent and caused these damages, why shouldn’t he and his insurance company pay to support her rather than the taxpayers through public assistance?

    I don’t understand why you prefer a taxpayer funded bailout for the medical profession, other than the fact that you are a doctor and benefit from such a bailout. I’m not arguing liability issues, here; that is for another day and another post. This is not a lost case; it is a SUCCESSFUL one. This is a case where malpractice has been proven, horrendous, life altering, injuries have occurred as a result, and tort reform advocates like you want to restrict recovery from doctor and insurance company and pass responsibility to victim and taxpayer. Why? How does this woman support herself without lifetime benefits from her litigation? How is that fair?

  3. jc says:
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    Now it is time to refute Mark and his many liberal arguments for Democrats. I vote against Democrats because I believe in smaller government and more liberty. Democrats think I am too stupid to make my own decisions. Well let’s look at how some of their programs work. We have spent $10 trillion to fight the War on Poverty and Poverty Won! More poor people and broken homes today then in the 1960s. Members of the Obama Adinistration (Gruber) are coming out and telling the public that Obama and the Democrats purposely lied in order to pass Obamacare–THE WORST LEGISLATION EVER ENACTED IN US HISTORY! My health insurance rates have increased from $1,041 in 2009 to $1,861 in 2014 for a decrease in coverage! So I vote Republican so I can protect my interests.

  4. Michael End says:
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    Dr. Cox, Wisconsin doctors not only carry a mandatory $1 million of medical professional liability insurance coverage, but also contribute to Wisconsin’s Injured Patients and Families Compensation Fund, which pays any judgment or settlement that is more than the $1 million of primary insurance coverage. To give you an idea of how difficult it is for a patient to recover compensation in a medical malpractice case in Wisconsin, Injured Patients and Families Compensation Fund now has $1,180,000,000 in its coffers. Over the past four years, the Fund has only paid a total of 17 claims. The Fund SURPLUS is now $580.9 million! That means that if the Fund shut down today and paid every case of malpractice in full for injuries suffered until today, there would be more than $580 million left over. The Fund currently has $200 million more than it has paid to all claimants since the Fund was established in 1975. In Wisconsin last year, there were only 41 people who recovered compensation for injuries or death caused by doctor negligence. That equates to one payment for every 140,066 people living in Wisconsin. If you think the goal of our civil justice system is to “make the plaintiff lawyers work for a living,” then Wisconsin is the place to be. Contrary to your statements, there is no incentive for an insurer in Wisconsin to settle a case, since the most the insurer ever has to pay is the $1 million of liability coverage. The Fund cannot settle a case unless the primary insurer has paid its $1 million of coverage. Since there is no point in the primary insurer voluntarily paying the full amount of its insurance coverage, cases with damages of more than $1 million rarely settle. Thus, the Fund has only paid, on average, four claims a year for the past four years. Extrapolating from an article published in April 2011 in the medical journal Health Affairs, there are 27,060 people who die or are injured in Wisconsin every year as a result of medical negligence. The 41 people who received compensation in Wisconsin last year represent less than one-sixth of one percent of the people actually injured. Is that your concept of a just system?

  5. Mark Bello says:
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    And, Dr. Cox, your Donkey/Elephant response did not address a single one of my points. In Wisconsin, why shouldn’t the doctor, his insurance company and the Compensation Fund that Mr. End describes pay to support this unfortunate victim rather than the taxpayer? How is making the taxpayer pay for that which others are responsible for and can afford a “Republican” concept or response? As always, you talk out of both sides of your mouth.

  6. jc says:
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    Well, Mike, I practice in Ohio, not Wisconsin, so forgive me for not knowing about Wisconsin’s insurance superfund. We don’t have that in Ohio, so if I get hit with a large judgement, I guess I am just personally liable. But in Ohio, we do have “pain and suffering” caps of $350k which is supposed to protect me from an egregious jury verdict. My concern is that ‘pain and suffering’ is subjective and a jury could use it as a substitute for punitive damages, as apparently the jury did in Wisconsin. In Ohio, since caps have been in force since 2005, there have been 27,785 malpractice suits filed and the caps only affected 13 cases, but during that time my malpractice insurance rates have dropped from $32,000 per year to $20,000 a year. That is a strong argument for caps on ‘pain and suffering’!

  7. Mark Bello says:
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    So, Dr. Cox, let me see if I understand your arguments: A woman who loses all of her limbs because negligent doctors failed to prescribe a $25.00 medication should have her recovery severely limited (to levels that won’t support her) at victim and taxpayer expense so that you can save $12,000 a year on your malpractice insurance premiums? And you think that giving a woman $25 million for the loss of all four limbs when a $25 medication would have prevented that tragic loss was “punitive”? Do I restate your arguments correctly?

    By the way, if caps only affected 13 out of 28,000 cases in Ohio in nine years, that is a powerful argument AGAINST caps. Obviously, if only an infinitesimal number of verdicts reach a level where caps apply, juries are only giving awards to the catastrophically damaged victims. Contrary to your rants about “jackpots” and “runaway verdicts”, juries are making sound judgments. You, on the other hand, believe that saving $12,000 a year is worth leaving under- compensated victims to live on public assistance. Shame on you.

  8. jc says:
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    Mark, your arguments are laughable. There are about 30,000 doctors practicing in Ohio. If they all saved $12,000 a year in malpractice insurance expenses, like I have, that works out to a saving of $360,000,000 a year! Between 2005 and 2012, i.e., in 8 years, only 13 cases (according to the Ohio Department of Insurance) of 27,785, were subject to “pain and suffering” caps. $360 million a year is big time money and the cost has to be passed on to the consumer (patient) in one way or another. So you think that allowing less than 2 cases per year to have uncapped “pain and suffering” damages is worth adding $360 million to the health care costs of the citizens of Ohio. Do I restate your arguments correctly?

    By the way, in previous blogs you stated that “90% of medical malpractice cases settled out of court are settled in favor of the patient!” According to the 0hio Dept of Insurance report in 2012, 2,197 claims (>79%) were closed without payment! Of the 2,773 cases resolved that year, 68.66% of cases closed when the patient dropped the lawsuit WITHOUT PAYMENT! Only 4.5% of cases were decided by a judge or jury and of those, doctors won 92.3% of the time! Mark, shame on you for providing false and misleading information to this blog!

  9. Mark Bello says:
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    Dr. Cox: Seriously?! You miss the point. We are talking about the INSURANCE INDUSTRY! You, catastrophically injured people, and all of premium paying customers are being deceived by the insurance industry. Carriers have ALWAYS been able to deduce your rates; if the statistics you keep trotting out are accurate, your rates should be even LOWER. Their profits are at record levels. There is no correlation between caps and rates. Zero! By the way, have you and your brother and sister physicians reduced your fees to your patients because of your $12,000 annual savings? Are you kidding me? Your “statistics” are so absurd I don’t need to comment. Get real. We should be allies in a crusade to stop insurance companies from ripping all of us off. Instead, they have naive doctors doing (and helping to pay for) their lobbying work for them. You are laughable, not to me, to them! They are laughing all the way to the bank!

  10. jc says:
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    Insurance rates are built on risks. I have given you statistics from the Ohio Department of Insurance, a state agency which has no agenda. You may get this report at http://www.insurance.ohio.gov. All I know is that Ohio passed tort reform and my malpractice insurance rates dropped $12,000/yr. Texas has even more aggressive tort reform and the yearly malpractice premiums are about 60-70% less than Ohio’s malpractice rates. I know that plaintiff attorneys don’t agree, but I see a pattern here. Malpractice caps + tort reform = lower malpractice insurance rates. Lower malpractice insurance rates + office expenses = Lower cost of doing business. Lower cost of doing business means we can hold the line on fee increases or see an additional Medicaid patient. By the way, since we are talking about fees, we would be remiss to not talk about the 40% contingency fee ($10 Million) which the plaintiff attorney will reel in should the $25.3 Million verdict stand (Nice work if you can get it!). Should this stand, Wisconsin doctors will see an increase in their malpractice rates.

  11. Mark Bello says:
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    Doc, you’re hopeless. Enjoy your new career as a spokesman for insurance company profits at the expense of injured citizens and the medical industry. It’s a fool’s errand, but, I guess someone’s got to do it.

  12. jc says:
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    Mark, that is a somewhat glib response. The facts that I have presented to you regarding medical malpractice premiums are right out a college business 101 textbook. It makes sense to me that if Ohio has “pain and suffering” caps and Missouri does not, it means that there is less risk of financial loss for a malpractice insurance company in Ohio than in Missouri. So if I am The Medical Protective, I can charge a lower rate in Ohio than in Missouri and make the same profit per policy. Trust me Mark,medical malpractice insurance companies have plenty of accountants, lawyers, and actuarieres to accurately assess their risk and set policy rates accordingly. They can and will pull out of a state when the legal environment gets too hostile.
    I think we need to take a look at all the frivolous law suits which are filed. This occurs because of grossly incompetent plaintiff attorneys. How else can it be explained that plaintiff attorneys lose 92.3% of cases that go to court!

  13. Mark Bello says:
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    As I have told you a thousand times, the discussion of “frivolous lawsuits” is a different topic than the discussion of placing caps on serious ones. Here, the failure to notify of and prescribe a $25 medication caused a patient to lose ALL FOUR OF HER LIMBS! Liability was proven in court. On what planet is this lawsuit “frivolous”? This woman deserves every penny (and then some) of this jury award. Your insurance company cronies (those guys who over charge you for your malpractice insurance) like to toss around “frivolous” and “caps” in the same sentence. When they do that, anyone with common sense can see that “tort reform” is a huge, greed generated, lie. A cap on serious lawsuit recoveries does not prevent the filing of “frivolous” ones. They are separate issues with completely different solutions. Very little about “tort reform” as we know it, is designed to prevent “frivolous lawsuits”. It is a red herring, designed to limit recoveries to people who have proven negligence and suffereed serious, even catastrophic injuries. It is a taxpayer funded bailout for the insurance industry. For you to sit at your computer, defend and/or trust the insurance industry to “accurately assess their risk”, while it lobbies for “caps” to protect against “frivolity” is the height of absurdity. The reason your rates are high is because the industry wants you to be angry. And, as part of their lobbying effort, they want that anger directed at victims and trial lawyers. That’s the genesis of the phrase “lawsuit abuse”. It’s also called deflecting blame, and they do it with impunity. Check out the profits of of your malpractice carrier and get back to me with how terrible things are for them. I predict you will find record profits for a very happy company. Then, go ask this unfortunate Wisconsin woman if she would prefer 4 limbs or 25 million dollars. I know you’re angry; I know you have had some bad experiences with the civil justice system. But, you have got to be kidding me with your ridiculous take on all of this!

  14. jc says:
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    Mark–even if the Wisconsin Courts of Appeal let the $25 million verdict stand, this woman will not get $25 million. $10 million off the top, goes to the plaintiff attorneys and she only gets $15 million. But I would hope the courts follow the law as enacted by the Wisconsin Legislature and drops the award down to $750 k p&s damages and $8.2 million medical damages. $9 million is a substantial verdict, and the legal fees of $4 million are also pretty substantial. Why do the trial attorneys have to be so greedy and go for the $10 million legal fee?
    O.k. Mark, if frivolous malpractice cases are separate issues, what do YOU propose to limit them. Obviously, they are a problem as I can personally attest. What punishment should be given to the plaintiff attorney who sued me for 6 years for a typographical mistake for which I had no responsibility? I say we allow docs to countersue plaintiff attorneys and that would solve the problem!

  15. Mark Bello says:
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    Dr. Cox: Do you practice medicine for free? Why do you begrudge a fee to an attorney who has worked for years, for “free” and spent six figures out of his own pocket to get a client justice, then asks for a fee and return of money spent only if the case is successful? Would you do a surgery or other procedure contingent on its success? You’re comparing apples to oranges. As to your question, when you stop supporting bailouts for bad doctors who do bad things (“tort reform” which limits damages in serious cases that have been proven in court-like the lawsuit that is the subject of this article), I will answer it (even though I have answered it several times in the past-look it up).

    You need to stop focusing on outrageously unfair damage limitations like this one where the perpetrators are not punished and the victims are. Focus on your situation; put the facts out there as to exactly what happened to you and why, write a guest post about it somewhere and alert me. I will provide a fair and measured response. Here, though, your hatred of lawyers and your bias toward the justice system is on display. In THIS case, regardless of how much plaintiff and her lawyer decided the fee should be, the fee has nothing to do with the doctor’s and the hospital’s negligence and liability for whatever the JURY decided damages should be. You have the arguments upside down. “Tort reform” or the limitation on damages in serious cases, does NOTHING to respond to the situation you describe in your comment. Thinking about this case, and this case only, what does it cost to support and pay for pain and suffering for a limbless patient who could have avoided it all by prescription of a $25 antibiotic? Why should the taxpayer and the victim foot the vast majority of the bill?

  16. jc says:
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    Mark, as a practicing doctor, I have never ever charged $10 million for a procedure or diagnosis. These plaintiff attorneys are going to get $4 million and they aren’t happy with that! What this exposes is the true motivation behind plaintiff attorneys and their desire to get rid of caps—greed! The woman is going to get $5 million. If an uninsured drunk caused an accident and the same damages the woman would get nothing! By the way, if a drunk caused these damages, the taxpayers would also end up taking care of the woman. Taxpayers pick up a lot of expenses like welfare payments to unwed Moms and big bank failures and auto company bankruptcys. This women will get at least $5 million which should help substantially. Wisconsin appeals judges should follow the law and reduce the $16 million pain and suffering damages.

  17. Mark Bello says:
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    Uninsured, drunk,negligent drivers who maim and kill people should do to jail. So should uninsured, drunk SURGEONS who do the same. Why is it OK with you that the taxpayers pick up the tab for your negligent brothers and sisters? Again, you cry about the injustice done you via a trivial clerical error but defend serious negligence causing serious damage at the same time. Happy to have a discussion with you about “frivolous” cases when you stop lobbying for limits on damages in serious cases with proven negligence and serious damages. This case, where the loss of all four limbs could have been prevented with an inexpensive prescription, is one such case. You seek to punish the victim instead of the negligent doctor just because you hate lawyers? If you are a careful doctor who rarely does anything wrong, you should be lobbying for STRICTER punishment against negligent doctors. The discussion of “frivolous cases” and damages caps in the same sentence is absurd and you know it. As to fees, doctors and attorneys are both professionals; they both get paid handsomely for their time. Doctors do not have to advance substantial dollars in costs for their clients or wait years for their fees. Doctors also get paid even if they fail, attorneys do not. On an hourly basis, doctors make more for the time they spend practicing their profession. Of course, you will probably go to one of your tainted “sources” for “evidence” that this isn’t so. Sort of like your phony “85% statistic” that leaves out all of the successful settlements. Get a life, man. If you are going to rail on about injustice, at least get your injustices straight. This case is NOT “frivolous” and the law in question does not seek to prevent the filing of “frivolous lawsuits”. It seeks to prevent the recovery of serious damages in serious injury cases. That’s wrong and it encourages bad doctors to keep practicing with impunity.

  18. jc says:
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    Mark–We finally agree on something! A drunk driver who injures a person should get sent to prison. A drunk surgeon or a doctor who purposely harms a patient should get sent to prison and malpractice and PUNITIVE DAMAGES are in order. In this women’s case, a mistake obviously was made. I do not think it was an INTENTIONAL mistake. If it was an intentional mistake, why didn’t the plaintiff attorneys ask for PUNITIVE Damages? As I recall there are no limits on punitive damages, so if the woman won punitive damages, she gets to keep the whole award. You and I have a fundamental difference regarding justice and medical malpractice. To err is human, and human doctors no matter how hard they work and try are going to occasionally make a mistake. I feel that if a doctor makes an occasional mistake, we should devise a way to fairly compensate the patient for real injuries. We should find the reason for the mistake and correct it, so it does not happen again. I am not convinced that our current malpractice system achieves these goals. From the tone of your posts, I get the idea that plaintiff attorneys are after vengeance and big bucks. So a doc who has worked his hardest for 25 years makes one unfortunate mistake at 2 AM, make his insurance pay a reasonable sum for the patients medical expenses—but don’t bankrupt the doc for one mistake after a lifetime of work. If you think a doctor is truely bad why don’t plaintiff attorneys go for punitive damages?

  19. Mark Bello says:
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    Dr. Cox: Part of the “tort reform” movement is to prevent seriously injured victims of outrageously negligent conduct from collecting punitive damages. We don’t disagree on damages, then, we disagree on the type of conduct that results in significant damages being awarded. You think a doctor needs to be drunk or purposeful; I look at the totality of the circumstances INCLUDING the result and how easily that result could have been prevented. Here, a $25 medication would have prevented a catastrophic result. To me, that is a significant case and appropriate damages to award is a JURY QUESTION. To you, the medical profession should get some help from legislators that it contributes to. When that help is provided, the victim pays dearly. THAT’S my problem. It is not vengeance; it is justice. We differ on what is “reasonable”. I can certainly sympathize with the doctor in your example (25 years and an unfortunate late evening mistake), but I sympathize with the victim even more. That’s where our differences lie.

  20. jc says:
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    Mark, I am asking this question out of curiosity. Why don’t plaintiff attorneys ask for punitive damages instead of pain and suffering damages?

  21. Mark Bello says:
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    Doc: When the law permits punitive damages and the situation calls for it, attorneys will seek them. Damages for pain and suffering and punitive damages are not mutually exclusive. Pain and suffering damages are reimbursement for an actual loss; punitive damages are awarded to “punish” the negligent party, usually for outrageous conduct. Again, if the situation calls for it, both are available. I don’t get the point you are making, though.

  22. jc says:
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    Mark, the point I am making is that this woman’s case did not involve egregious conduct, or else punitive damages would have been sought by the plaintiff’s attorney. This case illustrates the need for pain and suffering caps, as pain and suffering damages were used as a surrogate for punitive damages in this woman’s case. Mark, we fundamentally disagree regarding p&s damages. The Wisconsin and Ohio Legislatures and I believe that doctors practice in a very stressful environment and should be protected against bankrupsy in the rare circumstance (13 cases in Ohio since 2005) when a mistake causes a catastrophic loss. The added benefit of this argument is that medical malpractice rates are significantly reduced. In egregious cases, unlimited punitive damages are available to punish the doctor. Well legislators put limits on types of litigation all the time to serve the greater good. I think pain and suffering caps achieve this objective as they have significantly lowered my malpractice rates. Given that > 79% of all malpractice cases in Ohio are totally without merit and were dropped with NO PAYMENT in 2012, more litigation reforms are needed. Give docs the right to countersue plaintiff attorneys for frivolous litigation and the frivolous litigation issue would be instantly solved!

  23. Mark Bello says:
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    Doc: I don’t care whether the conduct is “egregious” or not; I am focused on the outcome. If the conduct is “egregious”, the victim should get punitive damages. If the outcome is catastrophic, the victim should get unlimited pain and suffering in the sound discretion of a jury. Here is the multi-million question since you are so focused on your “80% without merit” statistic that you fail to see the forest in the trees: Would you trade pain and suffering caps for the right to countersue plaintiff attorneys for frivolous litigation? The trouble with you and your self-serving arguments is that you want it both ways. If the doctor screws up and causes catastrophic damages, you want victims limited to next to nothing awards. If the doctor is vindicated, you want him/her to receive big damages from the victim and the victim’s attorney. It is a hypocritical position and the damaged patient is the one who gets screwed, on both ends, all for a little savings on the doc’s malpractice coverage. Now he/she can buy a nicer Mercedes. Shame shame.

  24. Ken says:
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    Doctor Cox- After reading both your and Mark’s comments I think what needs to be explained here is the basic purposes of damages in civil litigation. Pain and suffering, medical expenses, loss of future earnings, etc. all go towards ‘compensatory damages.’ They are to compensate the plaintiff for any damage that she encountered and to “make her whole” (or as close to whole as possible). The ‘punitive damages’ are meant to deter. In this case, punitive damages serve no purpose. As you stated, there was no intentional conduct, there was probably not even reckless conduct on behalf of the doctor. It was simply negligence. Punishing him/her for a slip of the mind would be a zero-sum game across the board. There is no conduct to deter, which is the underlying premise of ‘punitive damages.’ You are absolutely right.

    However, he/she made a mistake that cost the plaintiff all four of her limbs. As a doctor, and as a rational person, this is an argument that is simply risk/reward. A non-diagnosing of strep can be catastrophic, as it can spread throughout the body (like this case). A simple $25 medication could have solved the problem and the plaintiff would be on her way. Whatever reason existed behind not prescribing the medication does not really matter. What matters is that, as a result, the plaintiff lost all four of her limbs.

    While the medical expenses and the loss of future earnings are somewhat simple to calculate and easy to address, those of pain and suffering (emotional damages) are much harder to put a price tag on or even verify their existence. But as a reasonable person, would the medical expenses and salary be enough? What about your day to day struggles? What about the loss of ability to spend time with your children (5 in this woman’s case)? Sure a plaintiff’s attorney can play at the heartstrings of juror’s with more detailed narratives of specific losses, but at the end of the day there are 12 jurors that are there to agree on a number they find reasonable to compensate the plaintiff. $16 million is a lot of money, you are correct. But looking at the nature of this case I do not think it is unreasonable. This woman probably has something close to 16 years to live, considering increased health risks of a quadruple amputee, if even that. Would you take $1 million a year for the rest of your life if it meant the loss of your limbs? I would not.

    And yes there will be attorney costs.30-40% contingency basis (~$8-11 M). They do not work for free. It is a gamble the majority of the time for them to take cases that many times take years to proceed through if taken to trial, especially in states where the bar to prove medical malpractice is so high. This high standard of proof makes it more difficult for attorneys to take those marginal cases where there was negligence, but it was difficult to prove. I am not talking about frivolous claims here. Simply those that may not amount to what some states (Texas) consider “gross negligence.” In this case, the plaintiff was lucky to have found an attorney to take her class and she was even more fortunate that she was in a state that does not require such a high hurdle in proving the doctor’s failure.

    I won’t go into the insurance company argument for fear of never making it out alive.

    Great article and discussion below

  25. jc says:
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    Ken, I would like to thank you for your analysis of the facts. I totally agree with you that this was a mistake, simple negligence, and nothing more. To err is human, and we all make mistakes. Unfortunately, when a doctor makes a mistake, the results can be catistrophic. Fortunately, these cases are rare. As I have documented, earlier in this blog, in Ohio, in the past 8 years, only 13 cases, out of 27,785 cases filed have resulted in the pain and suffering caps being applied. That is less than 2 cases per year. Yet it has resulted in an insurance cost saving to me of $12,000 and an estimated saving to docs in my state of $360 million, per year! In a perfect world, when injury occurs from negligence, compensatory damages would always make the plaintiff whole.
    We don’t live in a perfect world. If a drunk driver caused the same injury to this woman, she doesn’t get $9 million, or $25 million–she gets nothing and taxpayers pay for her expenses. Pain and suffering damage caps are a balancing act. Ohio (and Wisconsin) have legislatively decided on caps to restrain outrageous malpractice premium rates. Those caps adversely affect those 13 people in Ohio who had grevious injuries. While I am sorry for those 13 people and their loss, I am grateful for the affect caps have had on malpractice rates.

  26. Mark Bello says:
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    And that comment sums up all we need to know about Dr. John Cox.

  27. jc says:
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    I think we would be remiss if we did not discuss Judge Jeffrey Cohen. Are not judges elected or appointed to uphold the law and interpret and apply relevant statutes? Here we have a rogue judge acting as an Ad Hoc social services agency by arbitrarily disregarding statutory law and ignoring pain and suffering caps. Tell me plaintiff attorneys, what accountability does this judge have for deliberately ignoring the law? This is a serious problem in malpractice litigation. Judges frequently act surrogate second chairs to the plaintiff attorneys. I have seen Judges try and twist the doctor’s arm to force a settlement on non-meritorious claims. Appellate courts can be even worse. One Appellate Court on the East Coast threw out a unanimous defense verdict because the jury was not polled after the verdict was rendered. I think that in egregious cases, if a judge gets overturned, the judge should be forced to pay the parties legal expenses.

  28. Jon says:
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    Seriously, Dr. Cox? And who or what is Scott Walker and his ilk who create these dangerous “reforms”, falsely linking damages caps to “frivolous” lawsuits. Who are the Mississippi hacks who deposed Justice Oliver Diaz by contributing millions to falsely portray his record and defeat him? Why are millionaires and billionaires spending millions to promote this garbage? So billionaires can become trillionaires and millionaires can become billionaires. God forbid they donate this money to charity or pro-Justice causes than on efforts to further line their already full pockets on the backs of the seriously injured and disabled. The suffering public be damned, right? If you have to pay a little bit more in malpractice premiums so that a catastrophically injured person can get a just and fair verdict or judgment, I’m not crying for you. Corporate greed is ruining our justice system and, indeed, our country, where the middle class no longer exists and all of the wealth is concentrated in the top 2%. Stop your whining; nobody feels sorry that you have to trade in your Bentley for a Mercedes.

  29. jc says:
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    I find it a bit hypocritical when plaintiff attorneys call me self serving and greedy for supporting pain & suffering caps when the plaintiff attorneys in this case are upset because they are only getting a $4 million contingency fee instead of a $10 million contingency fee without caps. Let’s be frank, plaintiff attorneys are against caps on pain and suffering for the same reason that I am for them—it is in their financial interest to abolish caps and it is in my interest to support caps. In Ohio, in 2000, we had a medical malpractice crisis caused by the Ohio Supreme Court’s refusal to uphold a “pain and suffering” caps legislation. Docs and businessmen mobilized and voted out offending Supreme Court Justices and we got more favorable Justices who eventually upheld caps. The med mal crisis promptly ended.

  30. jc says:
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    Another reason to support pain and suffering caps is the effect on malpractice litigation. A doctor is more likely to settle a case, even if the case has no merit, if there are no pain and suffering caps. That is because, when you are faced with litigation which could potentially financially wipe you out, doctors will sometimes roll over and settle even non-meritorious claims.

  31. Mark Bello says:
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    “I find it a bit hypocritical” for doctors to complain about the Affordable Care Act and, at the same time, lobby for caps on Malpractice litigation, leaving the taxpayer and the victim on the hook for the doctor’s screw-up.