The truth about medical malpractice cases in Pennsylvania: tort reform is not the answer unless you want to give up your rights

By Dean I Weitzman, Esq. on May 23rd, 2011

Pa. court report shows medical malpractice case filings down for 6^th straight year.  Here’s what that means to you, your family and your legal rights

Have you been hearing the hype from the Pennsylvania Legislature that more legal reforms are needed to protect doctors and hospitals from outrageous lawsuits in the world of medical malpractice cases?

Yes, that’s what they’re talking about again, but the problem is that it’s just not true, according to a story in The Pittsburgh Tribune-Review. In fact, for the sixth straight year, the number of medical malpractice case filings in Pennsylvania is actually down from 1,533 in 2009 to 1,491 in 2010, according to a new report from the Administrative Office of Pennsylvania Courts. Reports for medical malpractice cases dating back to 2000 are also listed by the agency, showing the actual declines over the last six years.

“In 2002 — the year malpractice lawsuits peaked at 2,904 — new rules designed to weed out frivolous lawsuits took effect, and experts credit those rules with the decline in lawsuits in the years that followed,” the Tribune-Review reported. “One requires plaintiffs to get another doctor in the same field to sign off on the claims, showing the suit had merit. Another requires malpractice claims to be filed in the county where the alleged malpractice occurred. That prevents lawyers from filing cases in counties where they believe juries will be more sympathetic, lawyers said.”

Present law states that “ if a jury finds a company or doctor liable — even 1 percent — the company or doctor could have to pay an entire multimillion-dollar verdict if other defendants cannot pay,” the newspaper reported. “The proposed Fair Share Act, which passed the state House, would hold defendants responsible only for the portion of the verdict a jury assigns to them if it is less than 60 percent. Defendants judged to have a liability of more than 60 percent could still pay an entire award.”

The problem with proposed rules like this is that they artificially limit damages that are available to a plaintiff who is grievously injured by the mistake of a doctor, nurse or hospital, and that’s just not fair.

How bad is this for victims?

In Texas in 2003, a legislative “reform” movement initiated damage caps in medical malpractice cases that limit damages for pain and suffering to $250,000. That means that no matter how horrific the injuries are for a patient, no matter their age, no matter how hugely their lives are changed by their injuries, all they can receive at most for pain and suffering is $250,000.

If that was you or someone in your family, would that be enough if you could no longer hold your children, take them for a walk, ride a bicycle, enjoy a game of golf or do any of the other activities we can take for granted?

Of course not.

One of our clients, a 52-year-old man, went in to a hospital for a routine procedure and a doctor stabbed a needle into his spine improperly, rendering the man a paraplegic. Since the man was already on medical disability in an unrelated case, he would suffer no lost wages from his horrific additional injuries, so he could not sue for damages such as lost wages. If he lived in Texas, that cap of $250,000 for pain and suffering would be so unjust it is ridiculous.

Through no fault of his own, he is unable to move his legs ever again. He is propelled in a wheelchair and has to wear diapers. He can’t be active outdoors like he was before his medical procedure.

Such damage caps not only harm patients but they unfairly reward doctors and hospitals for their negligence. Who is to say that certain cases are arbitrarily worth certain amounts for damages, even after your life is turned upside down?

If you could estimate that man’s damages for pain and suffering at $30 million, and juries do it all the time, then why is it fair that the patient has to settle for only $250,000 in a place like Texas? It’s especially galling when you realize that a doctor and hospital in Texas would only have to pay the $250,000 arbitrary amount of damages because they have extra legislative protections.

This is wrong that people are harmed and have long-term, intense, life-changing pain and suffering and that politicians and the medical profession want to somehow give doctors and hospitals special protections from paying for their horrific mistakes.

This, unfortunately, is a slippery legal slope. If damage caps on pain and suffering are enacted here in Pennsylvania in medical malpractice cases, then it might only be a matter of time until such arbitrary limits can be foisted on all of us in auto accidents cases and other types of legal fights.

It’s almost unconscionable in so many cases if we were to limit someone’s pain and suffering recovery to only $250,000.

Reform supporters say it is all aimed at making sure that doctors and hospitals can afford to stay in business, that their expensive malpractice insurance is harming their livelihoods.

Baloney. Instead, if doctors and hospitals were more careful, more dedicated to patient care and avoided causing such injuries to their patients in the first place, then sympathetic juries wouldn’t be rewarding millions of dollars in pain and suffering awards to deserving  injured victims.

We don’t need arbitrary limits for someone else’s pain or suffering. That’s what juries are there to decide, based on the merits of a case. Yes, once in a blue moon juries don’t get it right, but in the vast majority of cases the system works. Yes, there are cases out there where juries sometimes incorrectly award an outrageous sum in a case, but that’s actually very few and far between in reality.

On the other side, there are also cases where a jury didn’t necessarily understand a case and they fail to give a deserving plaintiff a damage award. It works both ways.

This is a true, god-awful  mess that we have, but limiting the rights of victims who have been seriously harmed is no way to fix it.

So what do all of these new court statistics mean and why should this be important to you, a health care consumer?

What the lower numbers of medical malpractice court filings mean is that the claims of the tort reform lobby are wrong – we don’t need any new laws that restrict the rights of injured people to sue for damages in medical malpractice cases because the alleged problem – a soaring number of cases – just isn’t so.

The rate of cases is actually declining, as the report from the Administrative Office of Pennsylvania Courts clearly shows.

Instead, what is not needed is the creation of arbitrary damage award limits that would tragically harm patients who have been grievously injured by doctors, anesthesiologists, nurses, hospitals and other medical professionals who made mistakes in their care. Those victims should not have to face arbitrary damage award limits due to no fault of their own.

The claims by hospitals, medical professionals and their lobbyists that such cases are hampering the abilities of medical professionals to do their jobs is outrageous. What’s outrageous is if a patient is injured by a medical mistake and cannot recover an adequate amount of damages to pay for their life-changing pain and suffering.

We have seen too many cases where a patient went in to a hospital for a routine medical procedure and came out with life-changing injuries due to a medical mistake, such as lack of oxygen during a procedure, to birth injury cases where a child was severely injured and will never live a normal life.

Those are the people who deserve to have damage awards that will help them and their families as they work to survive their grievous injuries. Those people need not face arbitrary damage award caps or rules that are really designed to protect insurance companies and medical professionals at the expense of injured patients.

Six straight years of a declining number of medical malpractice cases in Pennsylvania is graphic proof that the system is working well as it stands today. Damage caps and other new medical malpractice “reforms” are not needed.

Instead, such changes will harm patients who have been injured and make their lives more difficult.

If you or someone you love is ever injured in such a case, you certainly wouldn’t want them to be subject to an arbitrary damage award limit for their horrific injuries. It just would not be fair and it would hurt victims all over again.

We here at MyPhillyLawyer will stand by you if ever you or a family member is ever injured in a medical malpractice case that results in serious injuries.

We will fight every fight on your behalf and we will be your advocates, your trusted advisers and your experienced and skilled counsel every step of the way.

When winning matters most, call MyPhillyLawyer.