New York Personal Injury Law Blog » Medical Malpractice, Personal Injury, tort reform


December 7th, 2006

Tort "Reform", Trent Lott, and Changing Fortunes

I learned at that Senator Trent Lott, a long time proponent of reducing the rights of consumers, may be having a change of heart.

The reason? Seems his home got wiped out by Katrina and State Farm won’t pay him what he thinks he is owed after they took his premiums. The shoe, it appears, is suddenly on the other foot for Senator Lott, as he now must do battle with his insurance company. He was victimized once by the storm, and doesn’t want to see it happen again.

He therefore hired high-profile plaintiff’s attorney Richard Scruggs.

The turnabout in personal fortune reminds me of Frank Cornelius, who wrote an op-ed piece for the New York Times back in 1994. Mr. Cornelius tells his story in this excerpt better than I could:

Crushed By My Own Reform By Frank Cornelius
In 1975, I helped persuade the Indiana Legislature to pass what was acclaimed as a pioneering reform of the medical malpractice laws: a $500,000 cap on damage awards, and elimination of all damages for pain and suffering. I argued successfully that such limits would reduce health care costs and encourage physicians to stay in Indiana — the same sort of arguments that now underpin the medical industry’s call for national malpractice reform.

Today, from my wheelchair, I rue that that accomplishment. Here is my story.

On February 22, 1989, I underwent routine arthroscopic surgery after injuring my left knee in a fall. The day I left the hospital, I experienced a great deal of pain and called the surgeon several times. He called back the next day and told my wife to get me a bedpan. He then left on a skiing trip. I sought out another surgeon, who immediately diagnosed my condition as a reflex sympathetic dystrophy — a degenerative nervous disorder brought on by trauma or infection, often during surgery. * * *

At the age of 49, I am told that I have less than two years to live.

My medical expenses and lost wages, projected to retirement if I should live that long, come to more than $5 million. Claims against the hospital and physical therapist have been settled for a total of $500,000 — the limit on damages for a single incident of malpractice. The Legislature has raised that cap to $750,000, and I may be able to collect some extra damages if I can sue those responsible for the August 1990 incident that nearly killed me. But apparently because of bureaucratic inertia, the state medical panel that certifies such claims has yet to act on mine.

The kicker, of course, is that I fought to enact the very law that limits my compensation. All my suffering might have been worthwhile, on some cosmic scale, if the law had accomplished its stated purpose. But it hasn’t.

Indiana’s health care costs increased 139.4 percent from 1980 to 1990 — just about the national average. The state ranked 32nd in per capita health spending in 1990 — the same as in 1980.

It is understandable that the damage cap has done nothing to curb health care spending; the two have almost nothing to do with each other. In 1992, the Congressional Budget Office reported that medical malpractice litigation accounted for less than 1 percent of total healthcare spending. I doubt that the percentage in Indiana is much different.

Make no mistake; damage caps are arbitrary, wholly disregarding the nature of the injury and the pain experience by the plaintiff. They make it harder to seek and 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.

Medical negligence cannot be reduced simply by restricting consumers’ legal rights. That will happen only when the medical industry begins to effectively police its own. I don’t expect to see that day.

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