Revision — From the April 2016 issue

Suing for Justice

Your lawsuits are good for America

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Here is what a cap on pain and suffering looked like to the parents of two-year-old Steven Olsen in California: The little boy had fallen down, and a stick became lodged in his sinus. His mother took him to the local hospital, where he was examined and sent home. When he returned to the hospital several days later, the physician did not give him a CAT scan, which his mother requested and which would have detected a growing abscess in his brain. Steven became blind and brain-damaged. After assessing the evidence, a jury awarded the then- four-year-old child $7.1 million for a lifetime of darkness and pain. The jury was never told what came next. The judge, limited by a legislated cap, reduced the award to $250,000 — a sum that many an insurance-company executive earns in a fortnight. This draconian ceiling was mandated by the Medical Injury Compensation Reform Act (MICRA), which was signed into law by Governor Jerry Brown in 1975, after insurance companies sharply hiked malpractice premiums to encourage physician demand for such a restriction.

In succeeding years, Steven’s utterly devoted mother, Kathy, who just passed away, and his father, Scott, were forced to turn to their own insurance plans to pay for Steven’s care. And the exhilarated insurance companies, praising “liberal” California with their physicians in tow, began to push through similar caps in numerous states. The results, for victims of medical malpractice, were just as devastating. The wreckage of lives and families proved to be too much for Jerry Brown, who, in 1993, safely out of office, issued a statement repudiating MICRA and declaring, accurately, that the law had an “arbitrary and cruel effect upon the victims of malpractice. It has not lowered health-care costs, only enriched insurers and placed negligent or incompetent physicians outside the reach of judicial accountability.” Elected in 2010 and again in 2014 by large majorities, Governor Brown has now turned his back on his own words, declining even to urge the state legislature, dominated by his own party, simply to adjust for inflation and move the MICRA cap to a little more than a million dollars. When I told Brown that far more people lose their lives and are injured by medical malpractice than in motor-vehicle crashes, it did not move him.

With tort deform reducing the number of cases that are filed in court, the medical-malpractice insurers have been making record profits year after year. Meanwhile, an epidemic of preventable violence continues uncontrolled. State medical-examiner boards and physicians’ groups such as the American Medical Association do little to police their own ranks, despite statistics showing that 5 percent of physicians account for more than 50 percent of all malpractice payments. BusinessWeek saw through the propaganda in 1987: “The real crisis,” it stated, “is the degree of malpractice itself.” The Clinton Administration deplorably proposed weakening patients’ legal rights against medical malpractice while wooing the health lobby to gain its support for Hillarycare.

The majority of competent physicians know what the studies and their own experience in hospitals tell them. “You must understand that some of the malpractice out there is so grievous, offensive, and implausible as to beggar the imagination,” declared California physician Barry S. Schifrin, in remarks before the American College of Obstetricians and Gynecologists in 1985, right in the middle of the hysteria over tort reform.

In his book Silent Violence, Silent Death, Harvey Rosenfield observed that “according to the medical lobby and a surprising number of political officials, the problem is not, how are we going to reduce deaths and injuries caused by negligent or incompetent doctors and hospitals, but, how are we going to stop or impede victims of malpractice from suing the perpetrators of their injuries?” Prevention is the medical profession’s foremost ethic. Yet because physicians are falsely told, especially by their insurers, that the problem is frivolous lawsuits, they ultimately pay little attention to prevention. A study published in the New England Journal of Medicine explains: “Our findings point toward two general conclusions. One is that portraits of a malpractice system that is stricken with frivolous litigation is overblown. . . . A second conclusion is that the malpractice system performs reasonably well in its function of separating claims without merit from those with merit and compensating the latter.”

Compared with homicides (about 14,000 in 2014), the casualties emanating largely from corporate crime and negligence are staggering. Some examples include preventable deaths from air pollution (54,000 deaths per year), workplace-related diseases and traumas (about 60,000 deaths a year), and more than 3,000 lives lost annually from processor- or vendor-contaminated food.

Of course, nobody likes to be sued. The privileged One Percent is not accustomed to being in the spotlight. Corporations have bureaucratic barriers in place that are designed to shield their executives from the consequences of their own and their companies’ criminal misdeeds. Under civil tort law, however, subpoenas and depositions remove this cover and can reach, sometimes literally, into executive suites; attorneys for the injured can depose “parties of interest” under oath even if they are at the very top of the corporate ladder. From auto companies and pharmaceutical firms to energy and financial conglomerates, all can be required to hand over files, emails, and other documents that may be highly incriminating.

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is a consumer advocate and the founder of the American Museum of Tort Law, in Winsted, Connecticut.

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