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Bad Doctors, Not Bad Law

11/11/2007: Donda West, the mother and onetime manager of rapper Kanye West, died Saturday in Los Angeles. BBC News quotes her publicist as saying she passed away "as the result of complications from a cosmetic surgical procedure," but gave no more details. West's spokesman said the family "asks for privacy during this time of grief."

The doctor who performed the surgery was named Jan Adams, who was something of a celebrity in addition to being a plastic surgeon. He had appeared as a panelist on a show called The Other Half, which was a sort of an all male version of The View. He had also set himself up as a go-to medical issues pundit for news programming, appearing on CNN, ABC, and NBC, and he was also featured regularly on the Discovery Channel. Mr. Adams is a pretty good looking guy, and comes across as charming and personable.

But he apparently wasn’t a very good surgeon.

Prior to his operation on Ms. West, Dr. Adam’s had been named in a series of separate medical malpractice lawsuits.  The complaints involved a sponge left in during surgery, lack of informed consent, and professional negligence and fraudulent misrepresentation. There is also a rather unsettling history of DUI arrests, as well as allegations of abuse. Yet after all of this, Dr. Adams was only required to surrender his license to practice medicine in March of this year, which is almost a year and a half after Ms. West died after surgery and several years after multiple lawsuits and run-ins with the law.

It often takes a high profile example of a systemic problem to bring that problem to the attention of the general public. The case of Dr. Adams and Ms. West led many people to ask why he was still able to practice medicine after years of poor performance and erratic and irresponsible personal behavior. We believe that Dr. Adams was only one example of the medical profession as a whole failing to police itself.

A 2003 article from the Virginian Pilot describes in graphic detail how lax the standards are with state medical boards, using statistics from the National Practitioner Data Bank as examples. In the article, author Liz Szabo notes that there are hundreds of doctors in Virginia alone who still have their licenses, even after episodes of gross incompetence and criminal convictions, up to and including murder. If a state medical board is hesitant to revoke the license of a Norfolk doctor who murdered his wife, as the article states, it seems less of a surprise that someone like Jan Adams was still practicing even after multiple lawsuits, settlements, judgments and arrests.

The argument for such low standards is essentially that since it takes so much time and money to earn a medical license, state medical boards are willing to offer multiple chances to doctors who make mistakes. In fact, nurses are held to tougher employment standards then doctors. While we realize that even the most competent and professional of doctors can make errors during the course of treatment, it is clear that the standards need to be improved. You have to wonder what the outcome would have been for Ms. West had the California medical board taken action against Dr. Adams when it became clear that there was a problem with his competence.

It is dishonest of tort reformers to make it seem like the problem is just the court system. The idea that the medical profession is the blameless victim here does not hold water. And we fail to see how limiting the victims’ access to the courts while bad doctors are allowed to keep practicing will solve anything.

If you or a loved one Maryland, Virginia or Washington DC has been injured due to the actions of a doctor or other medical professional, contact Greenberg and Bederman for a free legal consultation today.

If you want to learn more about medical malpractice issues please read our medical malpractice page.  If you want to learn more about our medical malpractice lawyer, please read about John Sellinger, or watch his medical malpractice video on UTUBE.

In 2007, a Washington, D.C. administrative judge by the name of Roy Pearson filed a lawsuit against a dry cleaning service that misplaced a pair of his pants. The lawsuit was for the staggering sum of $67 million, which Judge Pearson later graciously lowered to $54 million.

The case became a cause célèbre among tort reform organizations, offering it up as a perfect example as to why our court system was, as they put it, broken. Believe it or not, as ridiculous as that lawsuit was, we view it as a perfect example as to how our system works.

Of course there are frivolous lawsuits. They are filed every day. But bear in mind that the great majority of these lawsuits are rarely represented by legitimate attorneys, and they are very rarely even allowed to proceed. Many of them are filed by people who are mentally disturbed, and many of them are filed by people who have only the faintest idea as to how the system works. The only reason Judge Pearson’s case was allowed to actually see the light of day and get to a courtroom was because he was, after all, an administrative judge. He knew the rules, he knew how to frame his argument so that his request for such an insane amount of money seemed justifiable in a strictly legal sense, and he knew how to fill out the right paperwork.

But just because he knew how to follow the rules didn’t make his case anymore valid, and when he actually got his case in front of a judge, not only did he lose, but the judge ordered him to pay the legal bills of the dry cleaner that he sued. Again, since he knew the rules, he filed for an appeal, but again, since the case was ridiculous and overblown, the appeal was denied.

The only way that the tort reform argument that the “system is broken” would be proven true is if Judge Pearson had actually won. He did not. And since the judge that heard the original case ruled that the defendants legal bills must be paid for, the family that owned the dry cleaning service will be reimbursed for the amount of money that they had to pay their lawyers. And on top of that, Judge Pearson was released from his position. If that isn’t a sign that the system works, it’s hard to say what would.

Predictably, tort reform groups jumped on this case and milked it for all the publicity they could get. Rare cases like these are, after all, the reason that these organizations get up in the morning. By stoking public outrage (which in Roy Pearson’s case was completely justifiable,) groups like the ATRA hope to gain support for their ideas, which almost always involve restrictions to the access of everyday people to our court system, or artificial limits to the amount of damages that they can receive, whether those damages could be considered reasonable or not.

Tort reform groups don’t just limit themselves to the cases that are overblown. They also underemphasize the damages received by real victims and distort the reasoning behind their lawsuits.

Probably one of the most pilloried legal cases in the past twenty years was the case of Stella Leibeck, who sued McDonalds over what people perceived to be the spilling of a mere cup of coffee, but in actuality was a lawsuit over third degree burns, a week’s stay in the hospital, skin grafts, and the refusal of McDonalds to even help with the medical bills. But as far as the tort reform groups are concerned, this was the story of a woman who simply spilled a little coffee and got millions of dollars for it.

If you take the tort reform people at their word, it almost makes sense. People spill coffee on themselves all the time and are none the worse for it. Some of you reading this might have spilled coffee on yourselves today, yet nobody is presenting you with checks for millions.

But the facts of the case don’t bear out this narrative. For one thing, McDonalds made it a practice to heat their coffee about twenty degrees hotter than anyone else. The water was hotter, and the hotplates that kept the pots heated were more powerful. If you think twenty degrees in temperature doesn’t matter, try dipping a toe in the bathtub when it is filled with eighty degree water, and then try it with one hundred degree water. You’ll notice the difference.

It should also be mentioned that the McDonald’s Corporation knew perfectly well that their coffee was too hot. There had been hundreds of cases of people being scalded by hot coffee that were in fact settled financially by McDonald’s prior to Ms. Leibeck.

Ms. Leibeck’s did not simply stain her sweatpants with spilled coffee. She dumped 8 ounces of 185 degree liquid directly into her lap, which was hot enough to cause third degree burns. The coffee from your coffee maker at home isn’t nearly that hot. Nor is the coffee at Starbucks, or 7-11, or Dunkin Donuts, or Caribou Coffee.

What is important to note is that Ms. Leibeck did not immediately file suit against McDonald’s. She simply asked them to pay for the medical bills, which were quite substantive considering that she had to endure skin grafts and stay in the hospital for a week. McDonald’s refused to even consider helping her. It was only after being faced with tens of thousands of dollars worth of medical bills that Ms. Leibeck contacted an attorney.

After hearing the facts of the case, as well as hearing that McDonald’s knew full well that their coffee was too hot, the jury sided with Ms. Leibeck. This decision was not left in the hands of some broken and unfair “system,” but rather by twelve people picked at random from the populace. In other words, people like you or me.

She didn’t even get that supposed “million dollars” that the “million dollar coffee case” was supposed to be about. An appellate judge reduced the punitive damages to $480,000. And bear in mind that the punitive damages in this case, or in fact any other case, do not exist to simply make people rich. If you could have asked Ms. Leibeck, she probably would have rather not have been burned at all. But the point of punitive damages is to penalize a corporation in the only way that matters to them, which is in their pocketbooks.

Remember, there had been hundreds of incidents of coffee scaldings at McDonald’s, and they had simply settled them. They did some arithmetic and decided that it would be cheaper to just cut a check and have people sign a waiver rather than get new hotplates and lower the temperature of their coffee. Hitting them with punitive damages was simply a legal way of letting McDonald’s know that that practice was not going to be acceptable anymore. And it worked. McDonald’s coffee isn’t brewed and heated at 180 degrees anymore, and scaldings are rare, if not nonexistent. And it cost McDonald’s less than one days worth of profit from coffee.

Is that “frivolous?” Is that an “outrage?” Is that “ridiculous?” Or is it a citizen using our court system to both address her personal damages and to help rectify a situation that was dangerous to others? But the tort reform organizations don’t mention that. They say “What about that crazy judge, huh? That’s almost as bad as the woman with the million dollar coffee. You know what we need? Damage caps. Damage caps and restrictions on lawsuits. That should fix everything.”

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The example of the dead infant isn’t mere conjecture on our part. According to an investigative piece by Paul Adrian that was broadcast on a Fox TV affiliate in Dallas, a family from that area made the decision to take their infant son off of life support. The infant’s parents were convinced that a preventable medical error had been made which placed their child in that position, but due to the non-economic caps, the cost of bringing the case to court would have cost more than the damages they would have received. As awful as this sounds, it turns out that the only way that damages in a malpractice trial involving a dead baby can be taken seriously in Texas is if the baby was making money. The life altering pain of the parents counts for nothing.

What was the situation like in Texas where such absurd and draconian measures were actually voted into law by its own citizens? Were people whose injuries involved nothing more than stitches walking out of courtrooms with million dollar verdicts? Was the Texas judicial system nothing more than a free ATM machine for unethical people and their equally unethical attorneys? Was there an exodus of doctors from Texas, leaving the injured and sick to fend for themselves? Were the insurance companies bleeding money so badly over lawsuits that they had no choice but to raise their rates to astronomical proportions?

The answer depends on who you ask. If you ask insurance companies and their public relations teams, the answer is yes. If you ask a bipartisan group of college professors, the answer is no.

The piece on the Fox affiliate cites a study that provides 14 years worth of Texas malpractice data, including claims and payouts, through both settlements and verdicts. In this study,

“…The data present a picture of stability in most respects and moderate change in others. We do not find evidence in claim outcomes of the medical malpractice insurance crisis that produced headlines over the last several years and led to legal reform in Texas and other states. At least in Texas, the rapid rise in insurance premiums that sparked the crisis may reflect, in significant part, insurance market dynamics rather than changes in claim outcomes.…Controlling for population growth, the number of large paid claims (over $25,000 in real 1988 dollars) was roughly constant from 1990-2002. The number of smaller paid claims declined. Controlling for inflation, payout per large paid claim increased over 1988-2002 by an estimated 0.1% (insignificant) - 0.5% (marginally significant) per year, depending on the

dataset we use to define "medical malpractice" claims. Jury awards increased by an estimated

2.5% (insignificant) - 3.6% (barely significant) per year, depending on the dataset, but actual

post-verdict payouts in tried cases showed little or no time trend. Real defense costs per large

paid claim rose by 4.2-4.5% per year. Real total cost per large paid claim, including defense

costs, rose by 0.8-1.2% per year.”

In other words, according to the actual numbers, there wasn’t much to panic about in terms of medical malpractice lawsuits.

So why were groups like Texans for Lawsuit Reform claiming that the sky was falling? If there was no big leap in judgments or payouts or even malpractice claims, then why were the premium rates going through the roof?

According to Paul Adrian, the answer might be, ironically, tort reform.

In 1995, Governor George W. Bush enacted what were called “Tort Reform Rate Reductions,” which forced medical malpractice insurers to lower their rates over a period of five years. How significant were the overall rate reductions?

·         1996: $435.5 million in rate reductions

·         1997: $441.2 million in rate reductions

·         1998: $656.4 million in rate reductions

·         1999: $699.5 million in rate reductions

·         2000: $685.5 million in rate reductions

So between 1996 and 2000, the state of Texas enacted regulations that cost medical malpractice insurers a little under THREE BILLION DOLLARS in premiums. Once the five year period was up and the mandatory rate reductions were over, insurance companies were quite eager to make up their losses. Hence the skyrocketing rates.

Insurance companies needed both a fall guy and justification for the spike in premiums, and they found them in trial lawyers. They also needed any sort of legislative leg up that they could get in order to maximize their profits. Since the insurance companies weren’t comfortable with going through the very legislature that made them lower their rates in the first place, they did an end run around them and, with the help of tort reform organizations that they financed and PR firms that they hired, they managed to get Proposition 12 on the ballot. It was voted in to law in November of 2003, and as a result a case involving a dead baby can’t even get to court.

Tort reform organizations all over Texas and all over America are touting the results of these economic caps as the reason that Texas malpractice insurers were able to offer even lower rates to their doctors, as shown in an article in The Austin Business Journal:

“In recent months, the state's top medical malpractice insurance companies have trumped rate cuts. They're crediting the lower rates to Proposition 12, a constitutional amendment approved by Texas voters in September 2003. That amendment cemented the Legislature's decision that year to cap noneconomic medical malpractice damages at $250,000.”

The article also mentions that the Texas Medical Liability Trust will reduce its rates by 5%, while Americans Physician Insurance Exchange is cutting theirs by 13%. And why wouldn’t they? By all accounts insurers in Texas have been making money hand over fist. And the $250,000 cap on non-economic damages is a miniscule proportion of that money.

Remember that after the “Tort Reform Rate Reductions” in the late 90s, insurers raised their rates to astronomical levels, and although they lowered them a bit after Proposition 12 was voted into law, the rates were still incredibly high. We refer again to the remarkable piece by Paul Adrian:

“Insurance premiums did drop for Texas doctors. According to TDI, the state’s largest insurer of doctors, The Texas Medical Liability Trust, dropped its rates 31% between 2004 and 2008, but that's after the rates had jumped up 148 percent between 1999 and 2003.  Insurance rates have come down, but not by nearly as much as they had previously increased.”

For a real world analogy, the Texas Medical Liability Trust bragging about dropping its rates 31% is the equivalent of an 800 pound man losing about forty pounds and then putting out a press release proclaiming that he is “thin.”

To summarize, “Tort Reform Initiatives” cost insurers in Texas billions of dollars, so they spiked the rates and blamed the lawyers in order to recoup what they lost. After securing legal limitations to the rights of Texans, they lowered the rates just enough to appear magnanimous, but not really enough to bring them down to normal levels. They then made it seem that the reason that they could finally “afford” to bring the rates down was not because of the windfall profits that they have made over the past six years, but because of a ballot initiative that states that unless a Texan makes money, then that Texan isn’t worth anything.

It should be mentioned here that the term “emotional pain” does not exist to simply make people rich. It is rather an acknowledgement that incompetence and preventable mistakes can cause crippling emotional hardship. If you think that’s an exaggeration, try to imagine how Paul Pinsukanjana felt when he ordered his infant son taken off life support. Try to imagine how he felt when he discovered that, thanks to the laws of his own state, lawyers can’t even afford to accept his case. Try to imagine how he feels, living with the knowledge that there might be a doctor or nurse still at work at that same hospital who was directly responsible for his son’s death. Try to imagine how he feels, knowing that that same doctor or nurse can continue to practice, with no fear of any adverse consequences if another mistake is made.

As we said, it’s impossible to put a price tag on that kind of pain, but we think that $250,000 feels pretty cheap.

To learn more about medical malpractice law, please read our medical malpractice law home page.  To learn more about our medical malpractice lawyer, John Sellinger, read about John Sellinger, or watch the medical malpractice video by John Sellinger..