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Medical Negligence Tort Reform Leaves Catastrophically Injured Patients in the Cold

Tort reform legislation favors insurance companies

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In 1975, Indiana representatives steered our state toward personal injury tort reform legislation in a rush to cap monetary awards ordered by juries in claims of medical negligence. The majority of these first generation “tort reforms” focused on the legal system. The stated objectives of the legislation were two-fold: to keep medical costs down; and to prevent physicians bolting from the state. This knee-jerk reaction to legislate in favor of the insurance industry and physicians has left catastrophically injured patients in the cold. The caps for personal injury victims of medical negligence, apply a “one size fits all” approach to every case. As of July 2011, 39 states have enacted legislation that limits economic and non-economic damage recovery for those who are injured by members of the medical profession. A few states have enacted legislation in favor of tort reform only to be struck down by higher courts as unconstitutional. [See how Indiana’s laws compare with reforms of other states here.]

On their website, The Indiana State Medical Association states:

“Physicians are only responsible for the first $250,000 in damages to any patient for one act of malpractice and no more than $750,000 in the annual aggregate. Indiana’s Patient’s Compensation Fund (PCF) pays any excess, not to exceed $1 million — for a total of $1.25 million.” [Key Features of Indiana’s Medical Malpractice Act published online by the Indiana State Medical Association.]

Tort reform insurance lobbyist crushed by his own reform

Frank Cornelius, a lobbyist for the Indiana Institute of Insurance, worked to secure passage of Indiana’s first medical tort reform laws and by his own account, “fought to enact the law that limits my compensation.” Sadly, Mr. Cornelius was harmed in a series of negligent medical incidents 14 years later that confined him to a wheel chair in excruciating pain requiring a morphine drip, and a respirator to facilitate breathing. What began as a routine arthroscopic surgery left him disabled until an early death at the age of 50. As often occurs when a family member has been catastrophically injured, his marriage fell apart and the consequences his family suffered were painful for him to witness. In a letter penned to the New York Times, shortly before his death, and entitled “Crushed by My Own Reform,” he details his horrendous experiences with the providers medically responsible for his injuries—the same providers he sought to protect with legislation. It states in part:

“Make no mistake, damage caps are arbitrary, wholly disregarding the nature of the injury and the pain experienced by the plaintiff. They make it harder to seek and recover compensation for medical injuries; extend unwarranted special protection to the medical industry; and remove the only effective deterrent to negligent medical care, since the medical profession has never done an effective job of disciplining negligent doctors.” [Read the full text of Mr. Cornelius’ letter here.]

What prompted Legislative Reforms of the Seventies?

During the seventies, physicians were experiencing higher than normal insurance premiums due to a sagging stock market and a decline in insurance company investment revenues. In the publication entitled “Trends Alert”, the Council for State Governments asserts that insurance rates are cyclical and coincide with the ups and downs of the stock market. The Council further claims that a rise in doctor’s insurance premiums occurs every ten years or so. The slump in the economy during the seventies created a crisis which forced insurance companies to raise their premiums at a time when modern medicine was employing more sophisticated forms of treatments and pharmaceutical therapies.

Tort Reform Legislation Overrides the Authority of the Jury System

The Seventh Amendment to the Constitution grants every citizen a right to a trial by a jury. Members of the jury are employed to hear the evidence of a case and to judge the facts. Juries set the awards which can be reduced by the judge if deemed unreasonable against the facts. Our juries act as an essential safeguard against government oppression, unchecked power and undue influence by special interests. Legislated caps on recovery of monetary awards granted by impartial juries have been a source of contention for constitutionalists and continue to be challenged across many fronts. On October 25, 2011, the Indiana Court of Appeals issued a preliminary opinion in the case of Plank v. Community Hospitals of Indiana, Inc. and State of Indiana stating that Mr. Plank, husband of the deceased, was entitled to an evidentiary hearing on the subject of the constitutionality of the State’s malpractice cap. While the Indiana Court of Appeals has routinely upheld the authority of legislators to enact tort reform laws, we’ll watch this case and keep you informed of their decision.

During the healthcare deliberations of twenty-ten, the meme on Capitol Hill was “tort reform” as the key to controlling costs. Insiders and lobbyists unsuccessfully pursued federal legislation that would unite the states. Today the American Tort Reform Association and several well-funded lobbying organizations representing the interests of insurance companies, medical, pharmaceutical and energy industries, and many other major corporations, chip away—state by state—at our jury system of justice by grabbing headlines with catch phrases like “legal abuse” and “runaway attorneys”. We are very fortunate to live in a country where opinions can be expressed. But good decisions by government representatives require a 360°examination of all sides of an issue by a curious public.

You can view Indiana’s legislation at http://www.in.gov/legislative/ic/code/title34/ar18/.

Trial lawyers representing hurt and injured

The law firm of Ward & Ward has more than eighty-five years of legal experience with personal injury and wrongful death claims and continues to seek justice for clients that have been harmed by the negligence of others. Our firm receives no legal fees or expenses unless we collect damages on your behalf. Call Charlie Ward today for a free evaluation of your claim.

By Charlie Ward

Ward & Ward Law Firm
728 S Meridian St
Indianapolis, IN 46225
317-639-9501