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Medical malpractice insurance reform: No

The 'reforms' proposed by the medical lobby are not designed to provide any benefit to the citizens of Pennsylvania

Sunday, March 10, 2002

By Jay N. Silberblatt

There has been a lot of propaganda about medical malpractice reform, but very little substantive information. The current controversy is not about doctors leaving the community or the unavailability of health care. Quite simply, the controversy is about accepting responsibility for medical errors.

   Jay N. Silberblatt is a partner at Silberblatt Mermelstein, P.C., a Downtown law firm. 

Doctors and hospitals are upset about their malpractice insurance premiums. They contend that rising rates are caused by jury verdicts in malpractice claims. Rather than reducing medical errors by weeding out health care practitioners who consistently provide negligent care, the medical lobby thinks the solution is to write a new set of rules that shifts the financial burden for their mistakes to those who have been harmed by their negligence.

Under current law, we become liable to pay money damages for an injured person's medical bills, lost wages, pain, suffering and inconvenience that result from our negligence. If a jury says that our negligence has caused $1 worth of damage or $1 million worth, that is what we (or our liability insurance companies) must pay. This is the way our judicial system has always worked.

The medical lobby wants to change this for doctors and hospitals. If theirnegligence causes injury (or maybe even death) for a patient, it wants a $250,000 "cap" on damages that must be paid. (The reform bill now before the state Senate includes only a cap on punitive damages, but the medical lobby originally proposed the $250,000 cap on all damages and will surely continue to push for such caps)

While $250,000 is certainly a hefty sum, ask anyone who had the left foot amputated when the doctor was supposed to remove the right; ask anyone who lost an eye, a kidney, a lung, or an arm to a doctor's mistake. Ask the lady who developed a wicked infection because her surgeon left a sponge inside her following abdominal surgery if $250,000 is fair.

Anyone who suffers harm because of a medical error should receive whatever amount 12 good people from the community decide. Our Legislature should not be monkeying around with our judicial system by writing a special set of rules that applies only to doctors, hospitals and malpractice insurance companies.

Further, if the doctors and hospitals succeed with their efforts in Harrisburg, the "collateral source rule" will be eliminated. This rule is important in the appropriate assessment of responsibility for negligent conduct.

For example, when the patient who had a sponge left inside her after surgery recovers from the infection, she files a lawsuit against the doctor and hospital to recover for all of the agony she endured because of their mistakes.

Under the collateral source rule, when the patient's lawsuit goes to trial, she will be permitted to tell the jury about the medical bills from the second surgery to remove the sponge and from the hospital stay and nursing home care required to clear up the infection. The law permits the jury to award money damages to the patient that includes all of those medical bills.

The medical lobby contends that this results in a "double recovery" for the patient. "After all," they say, "the patient's medical bills have already been paid by her health insurance company."

However, when the jury awards the patient money to cover her medical bills, our current law requires the patient to reimburse her health insurance company for all the money it paid out because of the negligence of the doctor and hospital. That reimbursement is called "subrogation."

Thus, subrogation places the responsibility for paying the medical bills necessitated by negligent treatment back on the doctors and hospitals whose mistakes caused the expenses to be incurred.

Doctors, hospitals and malpractice insurance companies want to eliminate the collateral source rule and subrogation in medical malpractice trials. If they are successful, the new law will not permit the patient to tell the jury about all the medical bills for the subsequent care. Consequently, the patient will not be able to reimburse her health insurance company for all the money it paid out because of the mistakes made by the doctor and hospital.

The result is to shift responsibility for the mistakes of doctors and hospitals to the health insurance bought and paid for by their patients. This shift allows the doctor and hospital to be compensated for the care necessitated by their own mistakes and causes increased health insurance premiums for the patient, her employer, and for the rest of us.

The health care lobby also wants to do away with the concept of "joint and several liability." This is a method of apportioning the negligence of multiple wrongdoers and assuring that an injured patient receives the full measure of compensation as determined by a jury.

When that patient who had the sponge left inside her files her lawsuit, she will sue both the doctor and the hospital. When the case goes to trial, the jury may apportion percentages of negligence between the doctor and the hospital, with the total to equal 100 percent. The jury might determine that the doctor was 75 percent responsible and the hospital surgical nurses were 25 percent responsible.

Under the concept of joint and several liability, the patient doesn't have to chase down both the doctor and hospital to collect her verdict. She is permitted to collect the total amount of damages from either the doctor or the hospital. In order to preserve fairness, Pennsylvania's current law permits either the doctor or the hospital to collect from the other any excess payment that they might have made to the patient.

Joint and several liability is rooted in the concept that all persons who act together to cause harm to someone else should be held responsible for the entire result. It assures that the party most deserving and in need -- the innocent, injured patient -- has the opportunity for a full recovery. It places upon the wrongdoers the burden of dividing up the monetary obligation made by a jury's verdict. If joint and several liability is eliminated, this burden will be shifted from the wrongdoers back to the patient.

The "reforms" proposed by the medical lobby are not designed to provide any benefit to the citizens of Pennsylvania. Rather, they allow doctors and hospitals to avoid responsibility for their mistakes (and allow malpractice insurance companies to avoid paying for medical errors).

Providing doctors, hospitals and malpractice insurance companies with a special set of rules is unfair. All people in Pennsylvania -- patients, doctors, hospitals, bricklayers, lawyers, teachers, bus drivers, homeowners -- ought to be treated the same way in our courts.

Justice is supposed to be blind. The moment we make special rules for a select group of people, we make a mockery of our judicial system, and justice becomes nothing more than an illusion.

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