Caps on certain damage awards are the most well-known form of so-called “tort reform.” However, any medical malpractice lawyer who has followed these political maneuvers can explain how damage caps are only one of many ways that those pushing for changes to the law are attempting to make it harder for victims of medical errors to receive redress for their losses. The common theme behind all of these efforts is simple: make it harder for victims to win a lawsuit and, even if they do win, make it harder for them to recover the full amount of their losses. For chronic defendants, insurance industries, and others, advocating for these “reform measures” represent a win-win. If they are not successful, then they have lost nothing, but if they can convince legislators to pass these measures than they will be able to increase their profits.
Often forgotten in all of the furor, even by those who believe that medical malpractice legal “reform” measures need to be enacted, is that legislation is rarely capable of being perfectly tailored to act exactly as desired. Each Chicago medical malpractice attorney at our firm knows the stories of so many victims of medical errors who were essentially refused access to the civil justice system because of the overbroad laws enacted by those clamoring for changes to the system.
The Seattle PI reported yesterday on a story highlighting the consequences of overbroad medical malpractice reform laws. The family in the case had known for some time that their pregnancy was high-risk. The mother had previously lost a baby following birth problems, and so she made special arrangements to work with a high-risk pregnancy specialists from Yale University when she became pregnant the second time. Unfortunately doctors at her regular hospital did not cooperate. According to the story, when the victim began having fever and back problems her regular doctors refused to turn over care to the specialists. The specialists’ recommendations were not even followed. Even more disturbingly, the experts’ care plan was hid from her so that she did not even know that the care she was receiving was contra to that for which she had specially arranged. As a result of the egregious conduct, the new baby developed an E.coli infection at birth. The boy fought hard and survived for 51 days before dying from a blood infection.
Obviously the family was devastated by the loss. Upon learning of the goings-on surrounding the care receiving by local medical professionals, the family filed a medical malpractice lawsuit. Unfortunately, the family has not been able to have their day in court. The case was dismissed by a judge on a technical rule that was enacted as part of the claimed tort reform fever that swept through the area several years ago. The legal rule requires plaintiffs to obtain the opinion of a medical expert before even being allowed to sue. Yet, defendants can often use this requirement to attack perfectly legitimate claims, and get them thrown out before being given a fair hearing.
Requiring opinion letter may seem reasonable, but they are simply another way defense advocates try to put up impediments for legitimate victims. These opinion letters often cost thousands of dollars to obtain, meaning that those without the resources essentially can never get to court if they can’t afford those costs right off the bat. It is for that reason that many states have declared these requirements unconstitutional. It represents an unfair barrier to access to the state justice system. In addition, some states have written the laws so narrowly, that even when a proper opinion letter is obtained it is deemed not to have met some specific technical requirement, leading the judge to throw out the case.
As one attorney interviewed for the story reported, “The argument is made that these (opinion letters) preclude the filing of a frivolous claim. It’s all just fear-mongering. It’s an impediment to bringing a case that gives them (defendants) a leg up.”
What these and other tort reform rules do is continue to skew the balance against victims of malpractice. The standard of proof requirement already tilts in their direction. In addition, so many fail to forget that there are already serious safeguards against frivolous lawsuit claims. The costs of litigating a case are quite high-a cost born and lost by the plaintiff’s counsel if they do not succeed in a case. There would be little reason for those parties to file suit that they would likely lose.
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