From the 'Lectric Law Library's Stacks
By: Scott Olsen
"Free flashlight" the man in the booth at the medical convention said. I stood there pondering the irony in his words when he repeated "Free flashlight; would you like a free flashlight?" "Oh, thanks," I answered, snapping out of my daze as I took the blue keyring-sized flashlight. "Great for trying to find things in the dark" the man continued, "And here's a pamphlet on our malpractice insurance rates". As I left the booth, I wondered what the man would have thought if he had known he had given a flashlight to the father of a now-blind 5-year-old malpractice victim.
On February 29, 1992, during an outing in the mountains, Steven did what two-year-olds are prone to do: He tumbled to the ground and came up with a twig lodged between his upper lip and gums. Steven was admitted into San Diego's Children's Hospital to have his wound cleaned and stitched. A week later, Steven began developing fevers and headache. After two consecutive days of doctor visits, Steven was readmitted into the hospital. The admitting resident diagnosed his condition correctly-- brain abscess--but failed to verify it with a CT scan (which my wife asked her and two others to do). Steven was discharged with a diagnosis of viral meningitis. The morning after his release, he was readmitted by paramedics, unconscious and in serious condition. Steven was finally discharged more than four months later with severe brain damage.
Five prominent doctors willingly participated in our lawsuit against our HMO and the state hospital that supplied the admitting resident. The HMO settled out of court. The state decided to take their chances in court, and lost, but ultimately avoided paying for the full impact of their negligence. This occurred because of California's ill-conceived and little-known Malpractice Injury and Compensation Reform Act (MICRA). This law places a $250,000 award cap for pain and suffering. In our case, the jury said the damage to my son was severe enough to be worth 7 million. In essence, this law gave the negligent party a 6.75 million break. This "one-size-fits-all" cap, enacted in 1975, has never been adjusted for inflation. By their nature, caps hit hardest at the most severely injured and children, who must endure pain for a potentially longer lifetime. True, his "economic" damages are covered, but this is merely money to keep his damaged body alive. Economic damages do not address in any way, shape or form the loss that he suffers in the quality of his life. If the damage caps are supposed to reflect the value that society places on the quality of life, the measure of that quality is about $4,000 a year, if my son lives to be 60.
Since it has been proven that malpractice costs are less than one percent of all medical costs, why aren't doctors held liable for all damages caused by him/her, just as a plumber, truck driver, or lawyer? No one doubts that the great majority of doctors perform their jobs with the utmost skill and care. These doctors have nothing to fear from medical malpractice. Importantly, it takes a doctor to testify that another doctor is negligent.
The argument for caps on pain and suffering and for proposed caps on punitive damages is that consumers will have to pay higher costs because insurance companies and doctors have to pay more for appropriate insurance coverage. In reality, corporations (doctors are corporations), want to limit their financial exposure. Caps give them a stable and lower cost of doing business. Consumers, like Steven, who become victims of malpractice, bear the cost of this sweetheart deal.
It is obvious to me that behind the rhetoric about the cost and availability of insurance is a brazen attempt to limit the power of our jury system. Under the doctor-sponsored MICRA law, the judge was prohibited from telling our jury that there was a cap on pain and suffering. The doctor and insurance company mantra for juries is to see no evil, hear no evil, speak no evil, and most importantly, be prevented from awarding monies to curtail or prevent an evil.
Doctors and their insurance companies never admit the real victims of their calls for "tort reform" are regular people like you and me. Instead, they cloud the issue by saying they are trying to defend themselves against the "greedy" trial lawyers. In my case, nobody took me seriously until I hired a lawyer. My son was denied daily out-patient therapy at a special school until our lawyer stepped in. We were denied hospital records until they were demanded by our lawyer.
The so-called "tort reform" juggernaut is bearing down on our state and federal governments. The 20-year experience of screwing California medical victims has ignited a call for national medical caps and a state proposal to extend caps to punitive damages. Consumers must let their representatives know that we will hold them accountable for a vote against victims and for negligent doctors, insurance companies, and faulty product manufacturers. We will not support legislation that blinds juries from applying justice to the unique facts and situations of each case; that which limits the liability of negligent doctors and manufacturers such as those who make silicone breast implants, Dalkon Shields, Pintos, and DES.
My son Steven has no use for a free flashlight. But perhaps through my son's peril, a light will be shed on this reckless lawmaking. Steven cannot see the light, but through our efforts and yours, his light of truth will be turned on.
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