Maryland Injury and Disability Law : Washington DC Metro Injury & Disability Lawyer & Attorney : Greenberg & Bederman : Accidents, Falls, Medical Malpractice : Maryland, DC, Virginia

People who get severely injured and experience a severe decrease in the quality of their lives are certainly unlucky, but as far as we’re concerned, they are only unlucky if the injury was the result of a random occurrence, or as insurance companies call it, an “Act of God.” If somebody gets severely injured due to the negligence of someone else, then that person is not “unlucky.” That person is a victim.

Here is an example:

Everybody knows Martha Stewart, right? Whether you like her or not, you know who she is. You’ve probably bought or cooked something that she designed or dreamed up without even realizing it. She is not just a person. She is a brand name. She has lent her name to everything from sweaters to pots and pans to dishes to furniture.

The furniture is where the injuries come in. Ms. Stewart’s company designed, built and marketed a line of patio furniture. The problem was with a certain brand of deckchair. The chair was built in such a way that the legs slip forward when you sit down, which means that if you happen to have your fingers underneath the chair, your fingers could very easily get sliced off by the hinges.

This isn’t conjecture on our part. This has actually happened to people. For at least one case, three people either lost or badly damaged the tips of their fingers, and this happened because they bought a specific type of deck chair. It wasn’t a power saw, or a belt sander, or a set of sharp steak knives, or a product where you can assume that there is some risk of injury. It was a deck chair, which shouldn’t be a dangerous product by any stretch of the imagination.

If you buy a belt sander, and you slip while using it and mangle your hand, that’s “bad luck.” If you buy a set of extra sharp knives and you cut your fingertips off while dicing an onion, that’s “bad luck.” If you buy a chair and use it exactly as you are supposed to, but end up losing the tips off of your fingers, that isn’t “bad luck.” That’s negligence.

To Ms. Stewart’s immense credit, she thought so too. Her company ended up settling with three injury victims for an undisclosed amount. But there are many corporations, insurers and tort-reform organizations who feel differently. Their advice for the three people who mangled their hands would be to walk it off. Let it go. Move on with your life. Sorry you lost three fingers, but hey, accidents happen, right?

We don’t buy that premise. If you get injured due to no fault of your own, and if the fault can be squarely placed on the actions of someone else, why is it considered “weak” or “greedy” to expect financial compensation for your medical bills? Or for money to make up for the pay that you lost when you had to recuperate in the hospital? Or to simply make up for the fact that you don’t have finger tips anymore? How is that an unreasonable set of expectations?

Do not let anyone tell you that seeking compensation for your injuries is the wrong thing to do. Nobody asks to get hit by a drunk driver, or to get injured due to medical malpractice. Nobody asks to be hospitalized because of a dangerous prescription drug or a faulty product. The day that medical treatment is free and the banks start adopting a “don’t worry about it” policy regarding your mortgage, then maybe we can start telling you to “walk it off.” But until then, we recommend contacting a lawyer.

Greenberg and Bederman is a Washington, D.C. injury law firm. We are currently offering legal counsel to those who have been injured due to no fault of their own. If you or a loved one has been hurt in a car or truck accident, or if you have been injured due to medical malpractice, contact Greenberg and Bederman for a free legal consultation today.

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..