Expert witnesses. Can’t live with ’em. Can’t live without ’em. Can’t kill ’em.
Buy me a drink sometime and I will tell you expert witness stories that will make your head spin. Or, let me buy you a drink and I will bore you with the same stories.
But I must confess that I never had an expert I had difficulty reaching because he was in jail. That’s right: jail. Read the opinion.
Public Citizen has just released new information that sets the record straight on various facts concerning medical negligence.
A few highlights:
1. At the same time that insurance rates in some areas have been climbing, the number and total value of malpractice payouts to patients have been flat since 1991 and, in fact, show a significant decline since 2001, when the spike in insurance rates began.
Why? Because, unfortunately, part of the job of being a tort lawyer who represents patients and other negligence victims is staying on top of issues that affect current and future clients. I have monitored tort “reform” legislation since 1984. I have testified on our Capitol Hill numerous times since 1985; the first time concerned a bill that severely limited the liability of servers of alcoholic beverages (it passed, we lost).
The fact of the matter is that plaintiff’s lawyers are one of the few voices for malpractice victims. AARP is there. Labor is often there. But there is no “Future Wrongful Death Victims of America Association.” There is no “Prospective Med Mal Victims PAC.” No one ever thinks that they will be a victim of a negligent doctor, a careless truck driver, or a defective product, and therefore even the consumers who care about the issue are often unwilling to speak out about it – they have too many other things going on in their lives that demand attention today.
Therefore, it falls upon lawyers to advocate for victims, not just in the courtroom, but in the halls of the legislature. We have to run for the legislature (only 17 lawyers out of 132 legislators in Tennessee!) or, if we cannot, give monetary support to those who will. We have to find non-lawyers to serve as candidates, help them win, and help them understand that the same people who had the ability to cast the votes that put them into office are the people who serve as jurors. We have to help them understand that when a jury makes an error there is a judge there who can correct the error, and that if that judge makes an error we have an appellate court system to correct it. In summary, we have a system of checks and balances that, all things considered, works pretty dang well.
Well, the Civil Practice Subcommittee met today but the sponser of the two “reform” bills asked that the bills be “rolled” (continued) until next week. The sponser indicated he wanted to amend the bill to address some of the issues I raised in the hearing of 12 days ago. Next Tuesday is the last day this committee will be holding hearings for this legislative session so it will be an all-or-nothing day.
I will be back there next Tuesday to testify. Medical malpractice victims will also be present. AARP will be presenting testimony against the bill and, presumably, so will the TBA. I will let you know what happens. If you want to help email me.
That title is so misleading. Today’s hearing has nothing to do with modifying the health care system to prevent injuries and death from medical malpractice.
Today’s hearing will determine whether the Civil Practice Subcommittee of the House Judiciary Committee will vote-out a bill to restrict the rights of people who have valid claims. We have come to the point in this state and this country where “reforms” restrict the rights of ordinary people and give more power to those who already have it. We call this activity “reform” because “power grab” or “wealth protection action” is too wordy.
I am scheduled to testify today. The good news is that Chairman Rob Briley (D- Nashville) is determined to have a fair hearing on the issues. The Chairman chaired another committee last year that basically determined that all of the hype about the need to restrict the rights of people with meritorious claims was just that – hype.
The American Association of Critical Care Nurses has issued a new study concerning medical malpractice in our nation’s hospitals.
This is scary stuff. The reports says that each year “one in twenty in-patients will be given the wrong medication, 3.5 million will get an infection from someone who did not wash his or her hands or take appropriate precautions, and 195,000 will die because of mistakes made while they’re in the hospital.” The study goes on to say that 60% of medication errors are caused by mistakes in interpersonal communication.
The study explains that the majority of health care providers break rules, make mistakes, or apppear to behave incompetently, but less than 1 in 10 say anything about it.
Yesterday I had the opportunity to testify before a group of state legislators interested hearing debate about a bill designed to limit the ability of patients to file medical malpractice lawsuits and recover adequate compensation when they do.
The bill, HB 2122, includes a provision that would give a defendant tortfeasor the right to reduce the damages awarded by the jury by the amount of life insurance paid for by the decedent, the disability insurance paid for by the plaintiff, the social security benefits received by the decedent’s family or the injured person, and worker’s compensation benefits.
It would also wipe out subrogation interests for every insurer who paid benefits to medical negligence victims. Indeed, it even attempts to eliminate subrogation interests for Tenncare, Medicare, and ERISA-based subro claims. Hmmm.
The March 28, 2005 edition of Lawyers Weekly USA reports several cases on behalf of nursing home residents killed by fire ants.
In Florida, a 73 year old man recuperating from surgery was attacked by fire ants. The lawsuit against the nursing home settled for $1,870,000.
The family of a woman in North Port, Florida received an undisclosed settlement for a similar attack. A woman in Bradenton won $1,200,000 for a fire attack assault. She survived.
A recent editorial quotes the results of a Florida study that demonstrates that there has not been the dramatic increase in the numbers of malpractice cases represented by the insurance industry and doctors.
The editorial said that “the research showed that while the state’s population climbed by 31.5 percent in this time, med-mal claims paid per 100,000 residents actually fell from a high of 12.36 in 1996 to 9.74 in 2003.”
The editorial goes on to say that “the study found the ‘debate about the role of juries in so-called ‘mega awards’ is misplaced.’ In 14 years, the study identified 801 cases in which more than $1 million was paid. Further, the study said 93 percent of the million-dollar payouts were the result of settlements, not jury awards.”
The Tennessee General Assembly has a myraid of tort “deform” bills pending in the medical malpractice field this year. Generally speaking, the bills want to cap damages on meritorious cases, limit attorney’s fees for lawyers who represent patients, cut off subrogation interests, impose periodic payments, etc.
The newest example of outrageous conduct is an attempt by the doctors to let the state medical board establish criteria for expert witnesses. To read the bill, click here, click on “Legislation” and enter House Bill number 1011.
The legislation would require the expert to sign the guidelines – or face cross-examination on the failure to sign them. It would give the state medical board the right to publish additional rules – perhaps even subjecting the expert to displinary action if the expert has been found by the board to given testimony with which it did not agree. This is witness intimidation, nothing more, nothing less.
Day on Torts