Adding Insult to Injury: More on the Medical Malpractice Myth

"Justice," as Thomas Jefferson said, "is the fundamental law of society."  Every election cycle, politicians and insurance lobbyists pepper the newspapers with calls for lawsuit "reform."  Invariably, these so-called reforms have one objective: to deprive individuals of the right to obtain justice.

The American legal tradition holds that justice involves a system of consequences that naturally derive from any action or choice.  When someone acts unreasonably, or negligently fails to act appropriately under the circumstances, the civil justice system ensures that there will be appropriate consequences.  These consequences accomplish the goal of compensating injured parties, as well as deterring wrongful conduct.  When these consequences are avoided, innocent parties are forced to bear the burden of the wrongdoer, and there is no incentive to refrain from future wrongful conduct.

In simpler terms, justice requires that we all follow the rules.  When we break the rules, we are accountable to those who have been harmed.

Election season is upon us, and so it is no surprise that the corporate interests behind the health care industry is calling for "more tort reform."  The reasoning behind this effort is that medical malpractice claims are expected to rise; thus, the industry will suffer an economic consequence.

But this begs an important question: Why minimize the consequences for negligent health care providers instead of minimizing the negligence itself?

Indeed, the real "crisis" isn't medical malpractice lawsuits, it is the increasing incidence of medical malpractice.  According to a recent report, "[s]erious medical mistakes...continue to occur despite recently implemented preventive measures."  And in another article, Dr. Martin Makaray, M.D. admits that "[c]atastrophic surgical errors are 'a lot more common than the public thinks.'"

Startingly, despite the increase of actual malpractice, patients only bring claims 22 percent of the time.  That means that nearly 80 percent of the time, health care providers who have negligently harmed their patients are not held accountable. In other words, eight out of ten times, a bad doctor breaks the rules and gets away with it.

The insurance industry and health care corporations aren't doing enough to minimize negligence, and that is why they are fighting for politicians to eliminate the consequences.  The Utah medical malpractice attorneys at G. Eric Nielson & Associates will fight to protect your rights, and fight to obtain justice for you.  We understand the medicine, and we know the law, and we will work diligently to hold negligent health care providers accountable when the break the rules.

And next time you hear about proposals to "reform" the civil justice system to benefit negligent health care professionals, consider another quote from Thomas Jefferson: "Law is often but the tyrant's will, and always so when it violates the rights of an individual."

Utah's Legislature and Special Favors for Insurance Companies

Article VI, Section 26 of the Utah State Constitution states, "No private or special law shall be enacted where a general law can be applicable."

Utah's constitutional framers included this provision in order to prevent the legislature from granting special privileges to individuals or corporations. The convention notes indicate that the framers were concerned with legislators who pass laws granting special privileges, for some at the expense of the rights of others. As Utah Constitutional scholar Jean Bickmore White has noted, this provision "express[es] the feeling that laws should not promote special treatment and should be administered even-handedly," and was specifically included as "a reaction to the corruption of some mid-nineteenth-century Legislatures." (The Utah State Constitution: A Reference Guide, at pp. 83-84.)

Notwithstanding this provision, the Utah State Legislature continues to enact special laws that permit negligent health care providers and their insurance companies to escape liability for their mistakes.

Last year, for instance, Utah enacted a law that raises the burden of proof for people injured by negligent emergency room doctors. This means that if you sue someone for causing a car accident, breaching a contract, or other civil wrong, you have a burden of proving your case by the "preponderance of the evidence;" in other words, you simply have to show that it is more likely than not that the other party is liable.

According to Utah politicians, however, Emergency Room doctors are "more special" than everyone else. The new law passed last year says that if an emergency room doctor is negligent, and causes you harm, you have to prove your case by "clear and convincing" evidence. This is a much higher burden, one that is almost impossible to meet in most civil cases. Indeed, this is the same standard murderers must meet to overturn their convictions. This special law was enacted by the Utah State Legislature to benefit insurance companies, and it has produced its desired effect. Since its passage in 2009, there has not been a single case filed against an Emergency Room doctor in the State of Utah.

What this means for you is that if you have an emergency and go to the hospital, the doctors can render substandard care, and there is virtually nothing you can do about it.

Interestingly, when the medical lobby was urging Utah's legislators to pass this bill, the hospitals promised that they would permit state officials to conduct a performance audit to ensure that Utah citizens were still receiving adequate care.

Not surprisingly, however, the medical and insurance companies have gone back on their word. They have refused to permit the state to investigate the quality of emergency care in Utah.

Thankfully, one legislator is trying to hold these companies to their promise. Representative Lorie D. Fowlke (R. Orem) is fighting for the citizens of Utah, and is demanding that the state be permitted to conduct its audit of Emergency Care in Utah.

Last year, the legislature did corporations and insurance companies a big favor. Make sure those companies keep up their end of the bargain, and allow the state to ensure that quality health care is still available.

Contact Lorie Fowlke and tell her that you support her fight to restore accountability in Utah:

Lorie Fowlke

lfowlke@utah.gov

596 West 1200 north

Orem, UT 84057

(801) 255-0721

Also, contact these officials and let them know that you will not tolerate the insurance companies' efforts to keep secrets from you and other Utah citizens:

John Schaff

Legislative Auditor General

jschaff@utah.gov

W315 State Capitol Complex

P.O. Box 140151

Salt Lake City, UT 84114

(801) 538-1033

Curtis S. Bramble

cbramble@utahsenate.org

3663 North 870 East

Provo, UT 84604

(801) 373-1040

John L. Valentine

jvalentine@utahsenate.org

857 East 970 North

Orem, UT 84097

(801) 373-6345

Compulsory Arbitration - A New Twist on a Bad Idea

Today the Salt Lake Tribune reported that State Rep. Stephen Urquhart (R. St. George) will be presenting a new proposal that would attempt to close the doors of the courts to victims of medical malpractice.

Mandatory medical arbitration involves taking a patient's claims out of the courthouse, where a neutral judge and jury adjudicate the merits of the case, and places the issues before paid arbitrators, whose decision is binding. Under Rep. Urquhart's proposal, parties could appeal an arbitrator's decision, but would be forced to pay the opposing parties' costs and fees if unsuccessful.

When mutually agreed to by both parties to a dispute, arbitration can be a valuable form of alternative dispute resolution. Compulsory arbitration, however, forces patients to waive numerous constitutional rights, such as the right to a jury. Additionally, the practice forces patients--many of whom are already struggling under the wight of lost income, disability, and unpaid medical bills--to pay the costs of the private arbitrators out of their own pockets. While this isn't a problem for huge health care companies, this additional cost can be financially devastating to someone struggling to make ends meet.

Rep. Urquhart is an insurance defense lawyer with Snow Christensen & Martineau, a law firm that defends negligent hospitals and doctors. He knows that big businesses, including the health care industry and its insurance companies, favor arbitration as a remedy for "frivolous" lawsuits and the health care "crisis." The truth, however, is that corporations and insurance companies favor arbitration for one simple reason: it gives them an advantage.

As Harvard Law Professor Elizabeth Warren recently remarked, "Arbitration may seem like the Andy of Mayberry form of dispute resolution--folksy, cheap, and fair. The data suggest, however, that it is Darth Vader's Death Star--the Empire always wins."

Health care corporations can easily outspend injured victims in an arbitration setting. Additionally, health care arbitrators know that if they rule against the health care companies, they will be "blacklisted" from ever arbitrating another case. This gives them an incentive to rule in the companies' favor, something known as the "repeat player bias."

This new legislation is just the latest in a series of attempts by the insurance and health care industries to make it more difficult for people to recover for their injuries. Thankfully, Utah's constitutional framers deemed it appropriate to protect citizens' access to judicial relief. Article I, Section 11 declares:

All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, which shall be administered without denial or unnecessary delay; and no person shall be barred from prosecuting or defending before any tribunal in this State, by himself or counsel, any civil cause to which he is a party.

Thankfully, this provision should protect Utah's citizens from compulsory arbitration of their medical negligence claims.

And hopefully, Utah's legislators will not try to push through a law that violates the state's guiding charter.