Monday, February 03, 2003

This is the body of an email I recently got from Suzanne Keith, Executive Director of the Tennessee Trial Lawyers Association:

Speaking Out on Medical "Reforms"
January 29, 2003
By Andrew Sarchus

Bravo for Linda McDougal.

To hear Bushites fret about the burgeoning healthcare mess, rising prices and unaffordable health costs are the fault of those nasty trial lawyers who just coincidentally support the Democratic Party with hefty financial contributions. Trial lawyers file "frivolous" malpractice lawsuits against "hard-working" doctors and hospitals, who just coincidentally support the Republican Party with heftier financial contributions. Naturally the Republicans want to help their wallets (and hurt the opposition's finances) by siding with the perpetrators rather than the victims of medical malpractice.


Linda McDougal is a middle-class American with no prior history of political activism, who suffered a double masectomy because a hospital pathologist mixed up her chest x-rays with those of a cancer patient. Now she must live with a permanent and totally unnecessary disfigurement.


When given the opportunity to speak to a national TV audience last week, she seized it. She spoke loudly, clearly. And she dealt a telling blow to the Bush regime's disinformation campaign.


The president offered his devious plan for "reform" of malpractice legislation two weeks ago. Stripped of frills, the Bush plan proposes a $250,000 cap on damages while allowing "unlimited" amounts for medical expenses. So what is wrong here? Well, for starters medical expenses are actually limited to less than $50,000 in most cases, including hospital and doctor charges. Secondly, medical providers routinely "write off" a portion of the charges due to insurance and HMO discounts. So a victim of malpractice receives either reimbursement or a write-off of amounts he owes. These write-offs are negligible to most providers, given the number of patients they serve. The use of the term "unlimited" in quantifying medical expenses is a sham.


Then what about damages? Here exists the only means by which victims of malpractice can hobble the perpetrators and get their attention (here in Bush Country, we call it a financial "two by four upside the head"). By winning a jury award of, say, $5 million in damages, a victim may recover potential income lost to disabilities caused by the malpractice. The award may also hurt the provider's finances enough where reform takes place, since the "perp" doesn't want to cough up big cash on preventable medical mistakes. On the other hand, $250,000 is mere pin money to most large hospitals and clinics. Why try reform when you can write a relatively small check and send the maimed victim away to sit on a street corner with a tin cup?


So Linda McDougal, when she was asked what message she wanted to share with the American people after her ordeal, spoke the truth: Bush is as much her enemy as the incompetent pathologist that mixed up her records. Bush's intent, she said, "is to harm me and other victims of medical malpractice. " She said that Bush should look at the source - make the doctors accountable. (On the same morning shows, a spokesperson from the hospital where McDougal was treated said that the pathologist was "truly sorry" for his mistake and has "learned a valuable lesson", but has suffered no penalties, financial or otherwise. Talk about making the doctors accountable!)


A study by a leading consumer group shows that only 5% of providers generate over 75% of malpractice complaints. And study after study has shown that so-called "frivolous" medical lawsuits are nearly always dismissed in the earliest pre-trial stage. Linda McDougal has not yet determined whether she will file a lawsuit. She just wants to be in a position to force reform on an industry that refuses to reform itself and depends on GW Bush, Bill Frist, and other GOP solons to neutralize its victims.


Through its systematic failure to weed out incompetent and negligent providers with rigorous fines, suspensions, and license revocations, the medical industry itself is largely responsible for our malpractice mess. Providers are the cause of malpractice, and malpractice lawsuits are the effect. Obviously, the Bush Administration refuses to acknowledge such facts. Doing so might cause them to lose count of the money.


By speaking out when given the chance, Linda McDougal may just have changed the framework of the political debate. No doubt her bravery has caused the Administration to briefly scuttle plans to push phony malpractice "reforms" until the heat subsides.


Linda McDougal's courage before a national audience helped expose Bush as a smirking phony on malpractice reform. Many other Bush policies, foreign and domestic, need to be exposed. May she serve as our example.


Interesting thought in regard to the above story: if federal law is enacted, then the defense would likely argue, in every malpractice case, that the federal law preempts completely any state common law action. Defendants' lawyers have been using that trick for years, for instance in the area of injuries from pesticides (federal FIFRA Act). Moreover, would a federal act preempt and therefore negate a state medical malpractice statute, such as what we have here in Tennessee? These are important questions, which appear not to have been considered yet.

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