Access To Justice

I’ve written before about a number of initiatives around the country to put caps on medical malpractice awards, and why such initiatives don’t make much sense for consumers.

When last we left these proposals, the Illinois Supreme Court had delayed issuing a ruling on whether the caps were constitutional in that state.  In February, the court issued its ruling overturning the state’s medical malpractice law and holding that caps on liability damages were unconstitutional.

Essentially, the Court’s decision reverses a 2005 state law capping non-economic damages—such as pain and suffering—for physicians at $500,000 and hospitals at $1 million.

The Court based its decision on a case that arose from Cook County, LeBron v. Gottlieb Memorial Hospital, involving the severe disability of a young girl, Abigaile Lebron.

The New York Times had a nice write up on the ruling here.

I’ve argued ad nauseum that caps on medical malpractice do not make any sense.  As I said back in December:

“The bottom line is this:  Damages compensate victims who have suffered because of someone else’s negligence, but they also force the system to be careful.  Doctors are more careful because they don’t want to get sued.  I think that’s a good thing.  Careful doctors are better doctors.  Our medical system has become better because of medical malpractice law, not in spite of it.”

Kudos to the Illinois Supreme Court for a sound decision.  Here’s hoping other states follow their lead.

I’ve written before about medical malpractice caps, and why they don’t make much sense, so I thought I would offer a bit of an update on the current happenings around the country.

Illinois was in the news recently as a key battleground, when the state’s Supreme Court on December 18 delayed issuing a ruling on whether a law capping medical practice damages would survive.

The law, passed in 2005, established caps on non-economic damages of $500,000 in cases against doctors and $1 million against hospitals. The case, Lebron vs. Gottlieb Memorial Hospital, was argued last year and deals with the tragic case of Abigaile LeBron, a 13-month-old girl who suffered a severe brain injury during birth at Gottlieb Memorial Hospital in Melrose Park.

The Illinois Supreme Court has twice previously thrown out damage caps as a violation of the separation of powers between the legislature and the courts. But the current state Supreme Court might be more amenable to damage caps since the 2004 election of Justice Lloyd A. Karmeier. Karmeier’s election was widely interpreted as a rejection of big damage awards, including those in medical malpractice cases.

Illinois is just the latest front in the med mal cap war.  In fact, a Missouri case is scheduled to be argued in January, and Maryland, Georgia and Oklahoma all have cases pending.

The Missouri case is particularly interesting because the law in that state sought to apply caps on damages retroactively. In the case, James Klotz and his wife Mary won a jury award totaling about $2.5 million from Dr. Michael Shapiro, the Metro Heart Group and St. Anthony’s Medical Center. The appeal involves the non-economic damages, which initially were about $1 million. The trial judge applied the 2005 law — passed after the medical procedure but before the trial — to reduce non-economic damages for Michael Shapiro from about $500,000 to $234,000 and for Mary Shapiro from $220,000 to zero.  The Klotzes argue that the law should not have been applied retroactively to the 2004 medical procedure.

Washington University, Saint Louis University and Missouri University have filed briefs on behalf of the law with caps. They argue that the law is important to limiting medical costs at the university hospitals they operate.

Now that’s a familiar if not increasingly discredited argument.

In fact, just this month, Public Citizen issued a report that found the liability limits in Texas have failed to curb medical costs.  How do I know that’s the conclusion? Because the title of the report is:

Liability Limits in Texas Fail to Curb Medical Costs

Despite the promise that caps on liability instituted in 2003 would reduce costs, lower barriers to insurance and keep doctors from leaving the state, the report found the following:

•    The cost of healthcare in Texas has outpaced the national average
•    The state’s uninsured rate remains the highest in the country
•    The doctor shortage in rural areas has become more acute

So much for the silver bullet of liability caps.  The bottom line is this:  Damages compensate victims who have suffered because of someone else’s negligence, but they also force the system to be careful.  Doctors are more careful because they don’t want to get sued.  I think that’s a good thing.  Careful doctors are better doctors.  Our medical system has become better because of medical malpractice law, not in spite of it.  Agree? Disagree? Let me know what you think.

The fight over tort reform goes on.  The current venue is Atlanta, Georgia.  As reported recently in the Atlanta Journal Constitution, a case currently being heard by the Georgia Supreme Court will decide whether aspects of the 2005 Georgia tort reform law should be upheld.

Specifically, the 2005 reform law required plaintiffs to prove “gross negligence” in order to succeed in medical malpractice suits against ER physicians and hospitals.  That standard is extremely difficult to meet, even when victims can demonstrate malpractice.

Let’s look at the Georgia case, and see what I mean.  According to the Georgia case involved:

“ pre-trial appeal pursued by Carol Gliemmo, who went to the emergency room at St. Francis Hospital in Columbus on April 22, 2007, after experiencing a sudden snapping in her head and a throbbing behind her eye. Gliemmo’s lawyers say that, instead of giving their client a CAT scan, the ER doctor blamed her headache on high stress, prescribed Valium and sent her home. Gliemmo screamed in pain as she was leaving, her lawyers say.”

She ultimately suffered a stroke and now suffers from paralysis and neurological damage.

The Georgia case is not the only challenge being made in appeals courts to so-called “tort reform” laws.  In fact, another Georgia case and a court in Maryland will decide the fate of caps on non-economic damages in medical liability cases.  In each state, laws were passed capping jury awards.  Lawyers are arguing that such caps are unconstitutional because they deny the victim equal protection under the law.

Ultimately the medical malpractice debate comes down to victims of malpractice interests against the interests of the doctors and their insurance companies.  In fact, nothing demonstrates this more than the facts of one of these cases:

Oral arguments in Atlanta Oculoplastic Surgery v. Nestlehutt on September 15th. That case is about Betty Nestlehutt a 71 year old woman who underwent  simultaneous cosmetic surgery procedures, a CO2 laser resurfacing and full facelift which apparently damaged her facial blood supply so severely that her facial skin literally came off, leaving her horribly disfigured.  She sued and the jury returned a verdict of around $900,000 in non-economic damages which exceeded the $350,000 cap under Georgia law. The judge in the case declared the statute capping a jury’s verdict unconstitutional.  That decision was appealed by the Defendant.

The tort reform debate wages on, but around the country, appeals judges are looking at cases like the one involving Betty Nestlehutt and beginning to question whether medical malpractice liability caps really make sense.