How tort reform eliminates the rights of victims of medical errors

By: Patrick Salvi Jr.

CHICAGO (July 7, 2017) – The House has passed a massive medical tort reform bill that would cap medical malpractice lawsuits by restricting plaintiff non-economic damages at $250,000. The legislation, the so-called ‘Protecting Access to Care Act,” passed 218 to 210. Next up, the Senate will vote on the highly controversial bill when they return from their July 4 recess.

The bill would make lawsuits brought by injured patients, nursing home residents and their families nearly impossible to pursue, tipping the scales of justice significantly in favor of the healthcare and insurance industries.

Supporters say the bill is necessary in curbing excessive costs in health care by reducing overhead costs through lower malpractice insurance premiums and argue people would save money on health insurance because doctors wouldn’t be practicing “defensive medicine”, i.e. ordering unnecessary tests and procedures to protect against potential litigation. The extra money would allegedly help pay for tax credits for people who buy health insurance outside the workplace.

But in reality, caps on these lawsuits wouldn’t lower healthcare costs. What people would most likely see is a modest to very small reduction in health care costs. Malpractice premiums are very small compared to general health care expenditures, like prescription drugs.

Further, ordering fewer medical tests would put patients at risk and mean a possibility of even more medical errors being made. Shockingly, medical errors are much more common than we like to believe. 2016 data says medical errors claim more than 250,000 lives annually and are the third leading cause of death in the nation, behind heart disease and cancer. Large settlements hold doctors accountable for their mistakes and help prevent the same errors from occurring to someone else in the future. The proposed reforms would eliminate the rights of these victims and make it even more difficult for them to obtain the compensation needed to have a chance at a normal life.

Our law firm has helped obtain millions of dollars on behalf of victims of medical malpractice. These multi-million verdicts and settlements have helped our clients move on with their lives after a devastating injury or loss. For example, our firm recently represented the estate of a woman who died following a routine surgery. She left surviving her a son and her husband. At the age of 57, she went to the hospital for the surgery only for the surgeon to negligently place sutures through the wrong part of her bowel. The infection that resulted caused her death shortly thereafter. She was not working. She had no significant medical expense related to this negligence. With this cap, her beloved family would never be able to bring this case to court. Expert fees alone would take up much of the $250,000 maximum making a lawsuit impractical. Rather, the hospital appropriately sought early resolution of the case and paid $3.5 million to settle the matter. While money cannot replace a loved one, fair compensation is our means of achieving some semblance of balance following such a catastrophic event for a family. The law can then work to both provide justice to individuals who are wronged and properly hold wrongdoers accountable.

It is also important to note that by capping damages, it may not be feasible for individuals such as children, the elderly, and those without a job to bring a lawsuit for medical negligence since their recovery would be limited to non-economic damages. Given the expense of bringing a malpractice suit, their recovery would be minimal.

In addition to capping damages, the bill says a doctor and a pharmaceutical company cannot be named in the same lawsuit. It would also apply to nursing home and drug and device cases, medical malpractice lawsuits related to coverage provided from government programs like Medicare or Medicaid, and could also be applied to coverage that is only partially covered by a government program or tax benefit.

The court system is about obtaining justice and trusting a jury to determine what compensation is fair and reasonable after a medical error. Instead of limiting the rights of people who were affected by medical negligence, the conversation should turn to how to prevent these errors from occurring in the first place.

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Patrick Salvi Jr. is a Partner at the Chicago Personal Injury law firm Salvi, Schostok & Pritchard P.C. He concentrates his legal practice on cases concerning personal injury, medical malpractice and product liability. He has obtained several multi million dollar verdicts and settlements on behalf of his clients. Click here to learn more about Patrick and his practice.