There’s an elephant in the room in the health care debate. We’re hearing a lot about high medical costs and uninsured people. And then there are the fake controversies over things like “death panels.” But what isn’t being discussed is the issue of patient safety. Instead, we’re hearing about national medical malpractice reforms and damage caps.

Here’s a link to a recent post I authored on PDXpersonalinjuryattorney.com, a blog devoted to Oregon injury issues. Here, also, is an amusing piece debunking some of the myths about tort reform being recycled by desparate politicians.

The thing that people miss is that an estimated 48,000-98,000 people die in America every year from preventable medical errors. As my buddy, Oregon trial lawyer Mark Bocci points out, it’s a bit like losing all the crew and passengers on a commercial jetliner every day.

Against this backdrop, caps and limits don’t make much sense. Let’s instead resolve to focus on patient safety. I can’t help but wonder what kind of conversation we would be having if everyday our civil aviation lost a plane.

David Sugerman

Texans are proud of doing things in a big way.  Unfortunately, big, loud and proud sometimes misses the mark on the wisdom front. It happened again.

In 2003, Texans went big and amended their state constitution to cap damages that can be recovered in medical malpractice claims. The proponents argued long and loud about the parade of horribles, often with little or no supporting documentation. We’ve heard it all before here in Oregon, too: doctors leaving the state, plus defensive medicine are responsible for the high cost of consumers’ health insurance. The Texas tort reformers sold the big and loud constitutional amendment as a means of lowering consumers’ medical costs.

Guess what? It didn’t work. This report explains that consumer health insurance costs have continued to climb in Texas.  Texas consumers gave away their rights and didn’t even get the benefit they were promised.

Much of the rhetoric about medical liability lawsuits is simply noise. The better information is that serious medical errors cause substantial injuries, that frivolous lawsuits are rare enough to be urban myth, and that medical errors can happen in clusters.

Damage caps are filled with vices. They substitute a lobbyist driven one-size-fits-all form of justice for a jury’s determination based upon a review of the facts and evidence on a case-by-case basis. Damage caps often discriminate against the retired, the elderly and the poor.

Those who live in Texas are proud of their state.  I’m not meaning to throw stones. I imagine Texas voters truly believed they were getting something of value when they gave away their rights by amending the Texas Constitution.  The rest of us are better served to take it as a lesson and not go down the same road.

David Sugerman

Here’s a somewhat misleading piece on the use of so-called “Independent” Medical Exams in the courtroom.

The article interviews Portland defense lawyer Ron Stephenson.  Ron suggests that both sides use biased medical providers. So it follows, according to the article, that it’s okay–even essential–that the defense use a biased medical examiner.

I’ve handled cases against Ron and his partners for decades. I can tell you without question that I always prefer to use the patient’s own doctor, and every lawyer who represents injured people will tell you the same thing. There are exceptions. Sometimes a patient’s doctor won’t agree to testify in court. Sometimes they charge so much money that we simply can’t afford their testimony.

I have the luxury of working in a smaller community. I know the lawyers and firms on the other side of my cases, and I know many of the doctors. Who my opponent selects for the defense medical exam will color my reaction. If it is a standard defense doctor, I will often oppose the exam or at least seek conditions. The most important conditions for these types of defense exams include the doctor’s earnings from medical exams and a video of the exam.

A number of my opponents choose a wiser path. When the defense selects a neutral physician, I will put much more stock in the opinion.  If that only happened more frequently.

David Sugerman

Here’s a sketchy but interesting report on a large defamation judgment handed down against a South Carolina blogger. According to the report, a referee appointed by a South Carolina judge set damages for injury to reputation at $800,000 and punitive damages of $1 million for a blogger’s defamatory statements about a South Carolina ad agency head.

There may be much hand wringing about this report, so it’s worth discussion.

From an early age, we all learn about the value of a person’s reputation. It’s an ancient value protected in many realms. The ancients revered it. Religious texts talk about it. It’s protected by various old court cases in many legal systems.  State constitutions commonly protect reputation interests along with property rights.

Many of these old sources remind us of what we know. Damage to reputation made by false statement is difficult if not impossible to fix. Or as better put in a statement incorrectly attributed to Mark Twain, “A lie can travel half way around the world while the truth is still putting on its shoes.”

For that reason, most western legal systems recognize a claim for damages arising out of false statements made the damage reputations. The modern name given is defamation.

Defamation claims generally require proof that a statement was made, that it was false, and that it caused injury to a person’s reputation. There are a bunch of other legal rules that come into play in modern defamation claims, which is simply a way of acknowledging that the summary here isn’t precise.

Now onward.

Whether you make false and defamatory statements by whisper, in a handbill posted on a wall, in the newspaper, on your blog, via Twitter, on the scoreboard at the ballpark, or to all of your Facebook friends, the effect is the same.  The lie has traveled half way around the world….

I have some questions about this case. I don’t practice law in South Carolina, so my questions are more about the rules that apply. In South Carolina, the referee and judge set damages. Here in Oregon, damages would be up to a jury.

There is also a First Amendment question about whether it’s right to award punitive damages in a case like this. Punitive damages punish an actor for bad conduct. They are added to damages assessed to pay for the harms and losses suffered by an injured person.  There’s an interesting tension in First Amendment cases. Where does the need to protect the right of free speech end? At what point does the constitution allow punishment for speech?

Not enough information here to assess, but it’s an interesting case. The takeaway for those of us who blog is that defamation rules apply.  But there’s really little different here from earlier days, other than the speed and distance which a lie can travel on the internet.

David Sugerman

In injury cases, the insurance company defending the case generally has the ability to obtain a medical exam from a doctor that it selects. These are often labeled “independent medical exams.” Here, the New York Times does an admirable job of highlighting problems with insurance medical exams.  One of the doctors interviewed by the Times reporter makes clear that he intentionally falsifies medical exam reports in order to  get exam business.

The key to the unraveling of the exam reviewed in the Times was a video of the examination. It did not match the doctor’s report.

Video should be a no-brainer, right? Interestingly, some judges allow videotaping of exams and some refuse it. Lawyers for the patient generally argue that a video record provides the best means of independently checking on what happened in the exam room.  This article provides a concrete example of why video is essential.

Juries are inclined to believe people whose first names are “Doctor” when the doctor is explaining what he or she found on examination. For that reason, it’s especially important to be able to discredit a doctor who is nothing more than an insurance company hired gun.

Back in Oregon, the insurance medical exam problem is a mixed bag. To be sure, there are doctors who are honest and straight and are not afraid to say when a patient is truly injured. But Oregon has its own share of doctors who are beholden to the insurance companies whose opinions consistently come out against the injured patient.

David Sugerman

More carnage from drunk drivers. As reported here, two drivers accused of driving under the influence collided at the intersection of N.E. Martin Luther King and N.E. San Rafael last night. The cars careened onto the sidewalk striking two pedestrians.

The pedestrians, Lauren Rasmussen and Austin Putnam, got caught in the crash. Ms. Rasmussen suffered profound injuries including the loss of one leg and severe injury to the other. No details were provided on the extent of Mr. Putnam’s injuries.

Looks like a series of bad decisions led to catastrophe. Our thoughts are with Ms. Rasmussen and Mr. Putnam.

David Sugerman

I grew up on Mad magazine, and one of my favorite features was “What they say…What they really mean.” And I’m reminded of that feature with this L.A. Times report on the Food and Drug Administration staff’s opposition to preemption.

Digression, first off, to credit reader JW on the pithy term “Kleptocracy” to describe the current regime’s fondness for allowing all its friends to gather at the trough. JDub says that he got it from wiki. Even so, his reverb is worthy of thanks and recognition.

And then some legal geek background on preemption. It’s a federal legal doctrine–based in the U.S. Constitution’s supremacy clause–that allows federal law to preempt or displace or block all state laws in a particular field. “State laws” is read broadly to include even a claim that might be based on state law. What it means for purposes of the kleptocracy is that a corporate wrongdoer who injures a citizen need not answer in court if the claim is preempted by federal law.

So one more little piece of foundation for this forehead smacker. Next week, the U.S. Supreme Court hears argument in the case of Wyeth v. Levine, Case No. 06-1249. In that case, the Bush Administration and FDA counsel are arguing that federal Food and Drug Act should preempt state law claims.  That’s to say, if you’re injured by a dangerous drug regulated by the FDA, our kleptocrats believe that you shouldn’t be able to sue.

The LA Times article demonstrates the inane basis of the argument. FDA staff knows full well that the agency does not and cannot protect consumers from drug company mistakes and misconduct. So it’s folly to assert that preemption should limit these claims. Back to Mad. They say: “Preemption is the best way to protect consumers because the FDA rigorously monitors drug safety.” What they really mean: “These consumer lawsuits from unsafe products are eating at our profits. We don’t like them.”

David Sugerman

This piece–including graphic pictures of burn victims–addresses the nightmare scenario of waking from surgery to find yourself in a burn unit with profound lifetime injuries.  Apparently, flash fires in surgery are more common than previously believed.

The problem illustrates the need for open courts in cases involving medical errors. If you have any doubt about the need for a healthy civil justice system, look at the faces of patients who suffered severe burns while undergoing surgery.

It’s only minor comfort to learn that it’s a rare catastrophe. But it also looks like fires in surgery can be prevented by controlling tools that spark the fire or adjusting the environment.  I wonder if this one is also on the list of “never errors” that our friends in the medical profession use in reviewing injury problems.

David Sugerman

Good explanation in–of all places–Forbes on how caps on damages discriminate against retired and lower-earning individuals. Oregon legislators and voters are often asked to consider capping damages, and for that reason, this is a good read.

As the author explains, caps on damages typically limit non-economic damages.  Non-economic damages have been wrongfully labeled as “compensation for pain and suffering.” In fact, those damages address all forms of harms and losses bound up in the joys and pleasures inherent in life that can’t be measured by a simple paycheck or bill. So if you lose the loving relationship of your mother, that is a non-economic harm and loss. Same deal if you lose your ability to lift your child, taste food, see a sunset, or walk on the beach. Those profoud human joys are at the core of non-economic damages.

Caps often do not limit what are called economic damages, which address an injured person’s out-of-pocket losses. Miss a month of work because you got hit by a drunk driver and that loss of pay is an economic damage. So are the medical bills that you incurred.

So here’s the problem. Those who fare well in the legal system are only those who have large economic losses. If you lost 10 years of earnings from a doctor’s mistake or if you will need lifetime medical care, you will be able to recover full compensation. But if you were retired or under- or unemployed, you won’t. The capped claim system doles out justice based on wealth.  In that respect, it is fundamentally wrong.

David Sugerman

There’s that commercial with the earnest, wise and sentorian guy talking about all the great things they do, ending with the intonation, “That’s Allstate’s stand.”  A new American Association of Justice study noted here names Allstate the worst insurer.

Interestingly, Allstate’s CEO’s 2007 compensation topped $10 million for the year.  That’s a lot of premium money. More to the point, it’s fair to say that Allstate has some…uh…history of being naughty.

My own experience is that some insurers are worse than others. While not all are bad news, many give injured consumers and policyholders the runaround when people make claims for their harms and losses. It’s common to hear someone in my office express surprise when Allstate or one of the other carriers fails to make good on its end of the insurance contract by, for example, failing to pay medical expenses incurred by the injured policyholder.

That’s particularly outrageous because the policyholder did what they were supposed to when they paid for the coverage. And then they get stiffed or hard-timed by Allstate. This is what we in the trenches refer to as, “Allstate’s stand.”

David Sugerman