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.
Attorney, certified civil mediator, and award-winning author of the Zachary Blake Betrayal Series—Mark Bello is also the CEO of Lawsuit Financial and the country’s leading expert in providing non-recourse lawsuit funding to plaintiffs involved in pending litigation. He is also 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.