Due Process

Tort reform, and especially reform of our system for compensating malpractice victims, once again dominates the news. Efforts at health insurance reform have provided proponents of limits on damages and attorneys fees with a platform to demand change. The medical establishment once again blames seven-figure plaintiff’s verdicts and “greedy lawyers” for the excess costs of defensive medicine. Costs that doctors argue drive up health insurance premiums. Costs, they say, are not needed to treat you but to protect the doctor from frivolous lawsuits.

An OpEd piece in the New York Post recently cited the cost of tort verdicts, noting that 10 of the largest 100 verdicts in the nation emanated from New York City courts. Limit those damage awards; cap outrageous attorney’s contingency fees. All of this is supposed to make us healthier and save millions in litigation costs, and by extension insurance premium costs.

Here is the fallacy in those arguments. Large plaintiff’s verdicts are a reality, true; but they are not spun out of whole cloth. Juries are not running amok. Judges have not abrogated reason and lost control of their courts. Large verdicts reflect major human tragedies that have resulted from the negligence of people and institutions in which we have blindly placed our trust.

I tell prospective clients who believe they have been victimized by medical or dental mistakes that their damages are directly proportionate to the degree of neglect that can be proven and the provable consequences of that neglect. It isn’t a Lottery. Juries take their oaths seriously. Courts instruct jurors that damage awards must be fair, just and reasonable, and based on the proven facts. They are not an excessive, emotional response to tragedy.

Trial judges have the power to reduce an excessive verdict that shocks the judicial conscience by ordering what the law calls a remittitur. Defendants aggrieved by a trial court’s refusal to reduce a large verdict next have the right to ask an Appellate court to review the trial judge’s decision. When a large verdict is upheld it has been passed upon at all three of these stages.

Recently Connecticut Attorney General Richard Blumenthal has called for more transparency in the review of medical mistakes. Presently the public at large can learn very little about medical and dental errors. Typically when a patient in a hospital is injured by some act of a health provider’s negligence the hospital’s morbidity and mortality committee conducts what is called a peer review inquiry. That inquiry is veiled in secrecy.

Doctors and administrators argue that peer review must be conducted in secrecy to insure frank and open discussion of medical mistakes without fear that what is said will become fodder for some aggressive plaintiff’s lawyer in a later lawsuit.

Injured parties and their lawyers are deprived of an opportunity to learn all of the facts surrounding a tragic error. The shroud of “peer review” insulates mistakes from true scrutiny. There should be compensation for victims of medical negligence. Our courts are open for the public to monitor the doings of the judicial system. Why shouldn’t the same rules apply to the medical profession?

In a case I handled some years back an elderly patient who could not speak was sexually assaulted by a respiratory therapist in his hospital bed. The medical chart merely noted that “an incident had occurred” with no other facts, despite an extensive peer review investigation. That family had the right to transparency n the review process.

When medical and dental malpractice claims are settled insurers insist on confidentiality agreements that also provide that the claimant will not voluntarily cooperate with an investigation by the state’s Department of Public Health. Injured plaintiffs agree to these demands because they need to settle cases and no other avenue exists, short of an expensive trial. Verdicts are public information but the vast majority of malpractice claims settle without verdicts.

Voluntary settlements are also reported to the National Practitioner’s Database. Again, there is no transparency because you cannot access that information.  Insurers and credentialing or licensing entities can gain access. Why not make that public? Don’t you have the right to know if your dentist or surgeon has been sued successfully?

The Department of Public Health (DPH) recently has been exposed as a paper tiger. Egregious errors, like the fertility doc who used his own sperm to impregnate a client, receive minimal punishment.

DPH is understaffed and underfunded. In response to a recent Freedom of Information request I made about a dentist I was informed that DPH had exhausted its budget for paper supplies and couldn’t send me hard copies of the documents I was seeking!

So let’s stop blaming the lawyers and the victims. Come on docs, if we are beating up on you unfairly then unseal the secret proceedings and let’s let the public judge.

If the Catholic Church can’t keep its dirty scandals secret any longer why should the medical profession?

Rich Meehan,, is a senior partner in the law firm of Meehan, Meehan & Gavin, LLP, Bridgeport, CT.  For more information on Rich or his firm you can access them at www.meehanlaw.com or www.ctdentalmalpracticelawyer.com, or email him at rtm@meehanlaw.com.