Medical misdiagnosis is a serious problem in our health care system. According to the Journal of the American Medical Association, diagnoses that are wrong, missed or delayed affect 10 to 20 percent of all medical cases. That’s a higher rate than drug errors or wrong-site surgeries, which get more attention. Despite continuing efforts to reduce medical errors, the problem doesn’t seem to be improving. Part of the reason is that some doctors do not know when they “got it wrong.” Some patients will seek a second opinion and unless the mistake results in a lawsuit, the original doctor may never know, especially if the discovery is delayed. Another reason is tort reform. Rather than focusing on patient safety and preventing future negligence, it focuses on stripping away patient rights to a trial by jury. When no one is held accountable, no one is safe.
The largest deterrent to medical negligence is the threat of a lawsuit. While litigation holds the healthcare industry accountable, it is also a reminder that the medical profession can’t hide behind their mistakes. Calls for medical malpractice reform have been misguiding citizens. Enacting damage caps on medical negligent litigation penalizes the unfortunate patient and provides a free pass to the negligent healthcare professionals and their insurance companies. When this happens, insurance companies get a financial windfall and the public sector, in the form of increased taxes for assuming the burden of the wrongdoers, take the financial hit. Removing accountability and restricting access to justice does nothing to improve safety; softening the penalty won’t prevent the crime. We must focus on fixing the problems rather than bargaining away the rights of patients who are injured, maimed or killed by health care providers.
It stands to reason that there will be fewer injuries and fewer lawsuits if there are sufficient safety measures in place, but even then, lawsuits are only a symptom of the disease. What are “tort reformers” doing to improve safety? What are they doing to improve quality care? What are they doing to save lives?
Mark Bello is the CEO and General Counsel of Lawsuit Financial Corporation, a pro-justice lawsuit funding company.
@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.
6 Comments
jc
It is obvious that Mark Bello has never been the target of frivolous malpractice litigation. Well, I have, and that is why I am a strong proponent of TORT REFORM and why I will continue the fight to restrict unqualified plaintiff attorneys and bogus malpractice litigation from going into court.
Last month, the bozo plaintiff attorney finally dropped a medical malpractice case against me which had gone on for 10 years and consumed $800 - $900,000 in legal fees. Only my defense attorney won, the patient got nothing! The gist of the case was that a patient came into the hospital with a beginning acute basilar artery thrombosis, the most deadly stroke known to mankind. This stroke was initially missed, but the pt and his comorbid conditions were treated, and the patient was discharged with the instruction to continue taking his meds and aspirin. So the patient goes home and does not take aspirin for three days and returns to the hospital with new stroke symptoms. At that time we discovered his acute basilar artery thrombosis. The strokes continue for the next two weeks despite therapeutic anti coagulation. Actually, nothing more could have been done for this patient even if we had correctly diagnosed acute basilar artery thrombosis on the initial hospitalization. The patient ended up only a little better than a vegetable. One of the things that really upsets me, is that instead of the patients wife coming to the docs, including me, and discussing her husband's case, she runs off and hires a lawyer! Thus started a 10 year legal odyssey. During discovery we discovered the plaintiff's expert witness against me, essentially agreed with me, and we used his testimony at the subsequent trial against the plaintiff. I won a unanimous jury verdict! But at that time the plaintiff attorney had invested $110,000 in the case, so he appealed. Due to a legal technicality on appeal, the case was reversed and went to the Ohio Supreme Court which goofed up and sent the case back for retrial. I won a Summary Judgement on the retrial, and the case was appealed again. I again lost the appeal on a legal technicality and we were going to retry the case this April, when the plaintiff attorney gave up and dropped the case--after10 years! Obviously, the plaintiff attorney had a personal hatred of me, but I figure he spent about $200-$250K on this worthless case and got nothing for it. During this odyssey I learned that most plaintiff attorneys and judges have a grossly inadequate store of medical knowledge. The judges were always dragging me into their chambers to try and twist my arm and get me to settle--because they didn't want to do their job and try the case! The plaintiff's attorney seemed to feel that all he had to do was show his poor patient in court and have a pity party instead of discuss causation! His theory was that if his patient had taken aspirin for three days his patient would have avoided subsequent strokes. He actually got expert witnesses from Harvard and Tufts to try and prove his theory and got his head handed to him when their testimony blew up on cross examination.
Tort reform should include training requirements for plaintiff attorneys. I should be allowed to countersue this stupid plaintiff attorney for this needless 10 year odyssey! Patients should be required to discuss their complaints and misunderstandings with their doctors before filing suit. Plaintiff attorneys should be required to honestly disclose their percentage of wins and losses to prospective clients. Finally, judges should be required to quickly make decisions and dispose of these cases. It took the Third Cuicuit Court of Appeals 1 year to make a decision in this case. If it takes that long to make a decision then the court is too incompetent to handle the case
Mark Bello
That's a sad story, indeed, Dr. Cox. Sorry you had to go through that and even sorrier for your patient. Your, obviously, was an UNSUCCESSFUL medical malpractice case. So...please tell me: How would capping damages in SUCCESSFUL medical malpractice cases prevent a circumstance like yours? We've had this conversation several times; I'm very sympathetic to your plight. But you never deal with the core issue: Caps on damages prevent full recovery in SUCCESSFUL, SERIOUS, cases. They do NOTHING to prevent the filing of cases that have no merit. That's why your tirades fall on deaf ears and you have no credibility on the issue. It is a senseless argument.
jc
Mark, we have gone thru this before. Caps on pain and suffering damages are essential for many reasons. 1. Actual damages like lost wages and medical damages are not capped. 2. "Pain and suffering damages" are subjective-- what does $50k vs 350k pain and suffering look like? 3. Pain and suffering damages significantly drive up malpractice insurance premiums. 4. "Pain and suffering" damages are used as surrogate punitive damages to try and coerce innocent docs into settling merit less cases. If lawyers really feel there is eggregious conduct file for punitive damages. 5. In Ohio, only 1-2 cases of malpractice per year are affected by "pain and suffering" caps.....in a state with a population of 12 million. So these caps rarely rarely affect a judgement. You have a better chance of winning the Ohio Lottery then having caps affect a malpractice judgement.
Now, why can't I be allowed to sue this bozo plaintiff attorney who sued me for ten years? Why can't we have lawyers go thru mandatory training before they are allowed to file malpractice suits?
Mark Bello
Dr. Cox: So, to sum up what you want, just so you can pay a little less in malpractice premiums (although your carrier probably wouldn't reduce your rates either way), you want the ability to sue the plaintiff when you win and you want the patient's recovery severely limited, with little or no punishment to the doctor, even when you lose and your conduct is egregious. Does that about sum it up? You are what I have always called a "tort reform hypocrite".
In Coxtopia, "bad lawyers" are terrible human beings, "bad doctors" get a free pass and the patient gets shafted, twice, once by the doctor who commits malpractice and then by the Cox rigged legal system that severely limits his/her outcome. Pray that you are never a victim in the system that you advocate for.
jc
Boy, Mark, have you messed up on what I want. Yes, I want caps on pain and suffering damages because they are so rarely used they have no effect on virtually all plaintiffs (0nly affects one patient a year in Ohio). This has a dramatic effect on malpractice rates as mine have decreased $12,000/year! The real problem is incompetent plaintiff attorneys. In 2012, 80% of the medical malpractice cases filed in Ohio were dropped with no payment. So instead of spending all this time and energy on the one patient in 2012 in Ohio who was affected by pain and suffering caps, like Mark wants to do, I say we concentrate on the thousands of frivolous malpractice suits ( like mine) which are filed every year by incompetent plaintiff attorneys like the nut case who filed the case against me because his client did not get an aspirin a day for three days, and sued me for ten years! We can solve this frivolous malpractice suit problem tomorrow at no taxpayer expense simply by allowing docs like me to countersue bozo plaintiff attorneys, like the one who sued me for ten years. Makes sense to me Mark. It would force plaintiff attorneys to more carefully evaluate cases before they file suit, and keep the bozos out of the court house!
jc
We are currently living in the legal state of "Bellotopia" where unqualified bozo plaintiff attorneys are given free rein to sue any doctor any time for anything--simply because the client was unhappy with the result. Yes sir, a typist makes a typographical mistake in which I am blameless and I get sued for 6 years and the case gets thrown out of court and in Bellotopia, that's O.K. I go thru 10 years of litigation, including a unanimous jury verdict because a patient didn't get an aspirin and the case is dropped and that's the way things go in Bellotopia. Mark Bello always wants to hold doctors accountable. Well how about holding the bozo plaintiff attorney accountable for asking for $7,000,000, suing me for ten years and dumping the case. How about the typo error plaintiff attorney who wanted $200,000 to settle his case before it was thrown out of court. Should he be held accountable? In Bellotopia those guys are home free---no accountability. Hypocritical isn't it?
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