February 14, 2013

More Bad Legislation to Limit Legal Rights of Patients

by Levin & Perconti

Virtually all “tort reform” related laws come from individual states. While it is a constant matters of contention, there are limits on what issues the federal can (or should) involve itself. When it comes to rules related to the civil justice system in each individual state, the federal government has generally stayed out of the way. However, that is not because no one at the federal level wanted to impose their perspective on the entire country. In fact, in recent years there has been an alarming increase in proposed federal legislation on this subject. All Illinois residents who are interested fighting back against these dangerous policy proposals should keep abreast of the situation out of Washington (usually related to medical malpractice) to ensure lawmakers are made aware of their opposition whenever it pops up.

It is also helpful for local residents to understand different “tort reform” proposals which are offered by individual states. That is not because those proposals will have any effect in Illinois directly, but because those pushing tort reform efforts often hop from state to state pushing different measures. If something is passed in one state, there is always the possibility that it may eventually be pushed through here.

Treating Med Mal Like Worker’s Compensation?
For example, one option being floated in Georgia is entirely eliminating the rights of some injured parties to seek accountability in the traditional sense following medical errors. Instead, lawmakers in the state are proposing a system akin to the worker’s compensation system. The idea is that all claims of mistreatment would be decided by a “panel” of doctors who would have the power to dispense funds out of a fund that participants paid into. Supporters claim that it will lower costs and improve efficiency.

However, in a well-argued critique, a post at the Peach Pundit explains how comparing Worker’s Compensation to medical malpractice claims simply does not work. For one thing, with worker’s compensation the “injury” is always straightforward--lost wages. That is a very specific, quantifiable damage. That is not the case with medical malpractice where things are far more complicated. Beyond lost wages there are things like lost use of limbs, lost mental function, and other damages that do not lend themselves to easy translation into funds.

Also, according to the new state proposal, these decisions would be made not by administrative judges (as in the case of worker’s compensation) but physicians themselves. Taking away neutral decisions and placing the in the hands of those with obvious bias never makes sense.

The post also points out that throwing out the current system will not come with the supposed “benefits” that proponents often claim. For example, as has been shown in the past (most notably in the Texas case), tort reform laws do not lower medical costs for consumers and usually don’t even lower malpractice insurance for doctors.

Hopefully one day we can get past these poor attempts to save cost on medical care by eliminating the rights of those harmed by malpractice. We certainly need to get a handle of rising costs, but focus must be on the care itself, not the slice of patients who seek recovery after they are severely hurt as a result of botched treatment.

See Other Blog Posts:

Legal Rights of Employees Who Report Fraud in Hospitals

Most Common Radiology Malpractice Suits