Day on Torts
Dr. Rebecca Hierholzer is an emergency room doctor who practices in Missouri (and perhaps Kansas). She reportedly believes that the citizens of Missouri – some of whom she has undoubtedly treated as patients, some of whom she may know socially – are incapable of following the law when called to serve as jurors. She reportedly believes her fellow citizens should be restricted from awarding the fair value of pain, suffering, disfigurement and loss of enjoyment of life by the imposition of arbitrary caps on compensatory damages.
Now, there are lots of doctors who share that view (and, by the way, lots that do not). So the fact that a doctor does not trust jurors is not something causes a blip on my radar screen. Telling me that a doctor wants to limit responsibility for medical errors is like telling me that he or she wears a white coat at work.
So why write about Dr. Hierholzer? I write because of the remarks attributed to her in an article in the St. Louis Post Dispatch about her effort to limit the rights of jurors, the injured and the dead in Missouri:
Hierholzer said the question of pain and suffering of victims ignores the effects on doctors and their families who face these high costs and large lawsuits.
“How can your pain and suffering be any more than mine?” she asked.
These remarks in the Post Dispatch may be erroneously attributed to Dr. Hierholzer. I have been misquoted in the press. I have had my statements taken out of context. Reporters are human and make mistakes.
So, to the extent that the remarks attributed to Dr. Hierholze were either not made or were taken out of context, please ignore the rest of this post.
In addition, I have, from time to time, said things to the press that, in hindsight, I wish I would not have said.
To the extent that Dr. Hierholze made remarks that she wishes she had not made because they do not accurately reflect her views, my heart goes out to her. Each of us inserts foot-into-month from time to time – me more than most people I know. And when those words find their way to print, living forever on paper and now on the Internet, sleepless nights arise. Been there, done that, sweated in the t-shirt.
But if Dr. Hierholzer did say what she is reported to have said and if she actually meant what she said, she has displayed either a profound lack of compassion or an alarming level of ignorance.
I assume that lack of compassion for people is not the good doctor’s problem. She is an emergency room doctor, an often demanding job that deals with people at some of the worst times in their lives. She undoubtedly cares about people in the need of urgent medical care. I am sure she saves lives on a regular basis.
She also appears to have done lots of work to help victims of sexual assault and undoubtedly has a real understanding of and concern for the effects of sexual abuse on the lives of the victims of those crimes. So, my guess is that Dr. Hierholze truly cares about people. Let’s remove lack of compassion from the differential diagnosis.
(I do not know if Dr Hierholze also believes in limiting damage awards to children or adults who are the victim of sexual abuse or human trafficking or if is only health care providers who deserve special treatment in the law.)
So, we are left to assume that Dr. Hierholze’s view (if the media report does in fact reflect her view) is grounded in ignorance. Why? Mainly because any person smart and diligent enough to be a board-certified emergency room doctor and earn a MBA and who has any knowledge of relevant facts would never suggest that the loss of life, the loss of a limb, the loss of mental functioning, or the mental impact of the loss of the ability to work and provide for one’s family is outweighed by a defendant doctor’s tax deductible professional liability insurance premium.
Not even close.
Nor could a person with the benefit of an education on this issue suggest that the loss experienced by a person whose child has died, a person who, mentally aware, is a prisoner is a unusable body, or a person who has lost fingers and toes from undiagnosed sepsis leading to DIC, bears any similarity to the stress and fear secondary to being named a defendant in a professional negligence case – a situation where your liability insurer will pay for your lawyer and pay any judgment entered against you up to the insurance limits you decided to purchase.
Now, I don’t mean to suggest that a doctor who has been sued for professional negligence does not experience emotional distress. (Or that a truck driver who is alleged to have killed a person on the roadway does not experience emotional distress.) Of course they do. But comparing the horrible, family-wide consequences of a medical error induced brain injured father to the stress secondary to being sued is like comparing a tennis ball – sized Stage IV brain tumor to a quarter-inch benign cyst that is a source of irritation only when its host sits on the toilet.
I am also confident that when a doctor or nurse is sued his or her spouse and children are impacted by the stress on their loved one. By the way, Dr. Hierholzer, stress is also experienced by the children of a brain damaged mother relegated to a hospital bed in the middle bedroom of their mobile home because of a medical error.
So, Dr. Hierholzer, if your views were accurately reported and if the root cause of your position is nothing more ignorance, permit me to prescribe a treatment that will readily and painlessly cure that condition. All you need to do is email me so that I can share with you the names of several outstanding attorneys in Kansas City who have represented the victims of medical errors. These lawyers will give you a chance to meet the injured party and his or her family and thus the opportunity to learn about the impact of medical errors on a family. See if a court-approved jury verdict by citizen jurors unrestricted by artificial caps, even a substantial verdict that was actually collected, makes everything just peachy.
You see, the great thing about ignorance is that it can be readily cured. Cure requires only an open-mind and a commitment to learn. The only known side effect of curing ignorance is that is disruptive to beliefs formed in the absence of knowledge. Well worth the risk, I think.