Jury Verdict Upheld in $63 Million Verdict

The Supreme Judicial Court has upheld a $63 Million verdict in a lawsuit against the manufacturer of Children’s Motrin. The comments to the media reporting have been in two distinct camps. Some have been supportive of the verdict given the serious injuries to the child. Others have been critical of the verdict, suggesting that the amount was somehow excessive. Some have even suggested that there should be caps in damage awards.

What we must not lose sight of is that a jury, members of our community, our neighbors, had the benefit of listening to all of the testimony, seeing all of the exhibits, hearing all of the arguments on both sides and following the law before coming to a verdict. We should not be critical of the jury’s hard work in coming to a verdict without knowing what the members of the jury knew before they reached their decision. They had a perspective that no one else could possibly have. A perspective based on not just some, but all of the facts, collective reasoning, law and conscience.

We should be very wary of anyone who suggests that there is an arbitrary amount of money that is always enough to compensate for any and all harms, without the benefit of seeing what harm was caused. To do so will guarantee that those members of our community harmed the most will not be adequately compensated. To do so, will guarantee that dangerous conduct will be repeated.

The law says that the jury is the “conscience of the community” with good reason. The jury speaks for every member of this community, with the dual purposes of compensating victims harmed by the wrongful conduct of others and deterring the continuation of that conduct. Conduct that is not deterred will be repeated.

Let us not second guess a jury’s verdict without knowing fully what went into reaching that decision.

Is Tort Reform Good for You?

We have all been bombarded with talk demanding “Tort Reform” from special interest groups and politicians who have accepted what their lobbyists say as true, with no independent verification of their own. The rhetoric is of “frivolous lawsuits” and a “medical malpractice crisis.” The suggestion is that anyone who brings a lawsuit is looking for something for nothing, driving up healthcare costs and ruining the country.

Tort law is that body of law that provides compensation to a person harmed by the wrongful conduct of another.  Tort law serves two important functions in a civilized society. The first is to provide a means of shifting the burden of harm caused by wrongful conduct from the innocent victim and the taxpayer, to the wrongdoer. What never gets discussed by “Tort Reformers” is that taxpayers pay a heavy price for medical bills caused by negligence. When a jury allows compensation, the government is reimbursed for those expenses, taking the burden off the innocent victim and the taxpayer.

In 2000 the Journal of the American Medical Association estimated that medical errors in U.S. hospitals cause 250,000 deaths annually, making it the third leading cause of death in the country. An article by Marshall Allen titled “First Do No Harm” (Washington Monthly March/April 2011), quotes a study by the U.S. Department of Public Health and Human Services that concludes “incidence of avoidable medical errors across the entire population…affected 1.5 million people and cost the U.S. economy $19.5 billion in 2008.” The driving up of healthcare costs is not the fault of medical malpractice lawsuits, the data suggests, but is centered on the attitude and execution of the medical care itself.

The Institute of Medicine has estimated the average U.S.hospital patient is subject to at least one medication error per day and the “financial cost of treating the harm done by these errors conservatively comes to $3.5 billion a year.”

An editorial in the March 19, 2011 USA Today pointed out that “If a 747 jetliner crashed every day, killing all 500 people aboard, there would be a national uproar over aviation safety and an all-out mobilization to fix the problem. However, in the nation’s hospitals…about the same number of people die on average every day from medical ‘adverse events,’ many of them preventable errors, such as infections or incorrect medications. Where’s the outrage?”

When professionals violate the teachings and standards of care of their specialty, providing substandard care and causing needless injury, should we close the courthouse doors to the innocent victim? Should we say the violator should be responsible for only some of the harm caused? This is precisely the goal of “Tort Reform,” to immunize the violator by either preventing or severely limiting the right to full and fair compensation.  A byproduct of allowing full compensation to those harmed by wrongful conduct of others is making everyone safer by holding those who do not follow the rules accountable. Accountability promotes safety.

Every time someone who does not follow safety rules causes harm to a member of your community but is given a “pass” and not held accountable, the standard of safety in your community is changed. A new, lower standard takes the place of the previous safety rule. Accountability breeds adherence to safety standards. Whether it’s a trucker with faulty brakes, a construction company using substandard materials causing the roof of a tunnel to collapse, a pharmaceutical company whose lax standards injure or kill patients, or a physician who does not follow the standards of his or her profession, letting it slide exposes us all to increased danger.

I have seen the power of tort cases make our communities safer not only in the medical field, but also on our communities’ roads. I tried a case before a jury in Middlesex Superior Court involving a trucking company that refused to put reflective tape on the sides of its trailers. One of its tractor-trailers had backed onto an unlighted roadway on a rainy night, resulting in the death of a young father. The trucking company’s safety director testified at trial that the law did not require the company to install reflective tape on trailers already on the road.  He testified that it would cost $149 to add the reflective tape to each trailer and that as far as the trucking company was concerned it was the problem of other motorists if they did not see the trailer. The safety director said that the company had no present intention of installing the reflective tape.  The case concluded and the family was compensated.

Equally important to the community was that within two weeks of the trial, the company changed its policy and installed reflective tape on its trailers. Holding a wrongdoer accountable discourages unsafe behavior and makes our communities safer. Giving a wrongdoer a pass encourages unsafe behavior and endangers us all.

Make no mistake about it; the promoters of “Tort Reform” are driven by special interests. Their agenda is to take away your rights; your right to adequate compensation if someone does not follow safety rules and injures you or a member of your family, your right to hold accountable those who do not follow the rules, your right to insist that safety standards in your community not be lowered by anyone who will not have to face the innocent victim or his family and live with the harm caused.  Once these rights are taken away, you will not get them back when you may need them most.

So the next time someone suggests that “Tort Reform” is a good idea, ask yourself “For whom?”  Whose interests will be protected by immunizing negligent conduct? Is it good for the innocent victim? Is it good for the taxpayer who will have to pick up the bill for the sub-standard medical care?  Is it good for the safety of your community by lowering the standards so that negligent conduct is now acceptable?  Or is it good only for the violator of safety rules and standards that are there for the protection of you, your families and the members of your community? Looked at in this light, maybe “Tort Reform” is not such a good idea after all.


Who Will Protect the Patients?

          A recent WBZ television (I Team) investigation of the Massachusetts Board of Registration in Medicine, which has the mandate of licensing, investigating and disciplining physicians, found that of 654 doctors who settled malpractice claims only 6 received any sort of discipline.  The investigation revealed 14 doctors who had settled 3 or more malpractice claims and none were disciplined.  The executive director of the Board of Registration in Medicine, a physician, defended the Board’s actions saying that the Board relies “primarily on complaints from patients, hospitals and law enforcement-not malpractice claims.”

           What is disturbing about this is that perhaps the most crucial information concerning the adequacy of care provided by some physicians is being completely ignored by the Board of Registration in Medicine.  When a medical negligence action is filed with the courts, a Medical Malpractice Tribunal is scheduled.  The Tribunal is comprised of a judge, an attorney and a physician, typically of the same specialty as the defendant physician.  The patient is required to provide a written “Offer of Proof” to the Court, the members of the Tribunal, opposing counsel and the Massachusetts Board of Registration in Medicine. The “Offer of Proof” contains pertinent medical records concerning the defendant doctor’s medical treatment and a report from a medical specialist who has reviewed the medical records and has concluded that the treatment of the defendant physician did not meet the standard of care required and that the departure from the standard of care injured the patient.  The Tribunal is conducted in open court.  The attorneys for the defendant doctor and the patient argue their case.  The Tribunal makes a ruling.  If the Tribunal finds that the case is an “unfortunate medical result” but not malpractice, the patient must either post bond or the case is dismissed.  If the Tribunal finds for the patient, the case can proceed to trial without the posting of a bond, the jury never learning of the findings of the Tribunal.  The Board of Registration in Medicine is notified of the findings of the Tribunal.

          The statement of the executive director that he relies “primarily on complaints from patients, hospitals and law enforcement-not malpractice claims” strongly suggests that information critical to patient safety is being overlooked.  Most patients do not know what the Board of Registration in Medicine is, let alone know that they can file a complaint there.  “Law enforcement” does not investigate physicians unless there are violations of criminal laws such as the unlawful prescription or administration of medications as in the Michael Jackson case.  Do you suppose that there might be some reluctance on the part of hospitals to report their own physicians?  In an extreme example, nurses in Texas  were charged criminally for doing just that.  They reported a physician who endangered patients and they were charged with the crime of “misusing official information”.  After lengthy legal proceedings and a trial, they were ultimately found not guilty.     

          I am not suggesting that the vast majority of physicians do not provide competent care.  They do. The fact remains however that patients die each day from medical negligence.  What I am questioning is “Who is protecting the patients?” from those who are incompetent.  It is not “law enforcement”.  It is not their job and they do not have the training to determine whether treatment met the standard of care.  It is not the patient who does not know where to turn when the unthinkable happens.  It apparently is not the Massachusetts Board of Registration in Medicine either.

          The job has become that of our juries.  Their job is not easy but must be done since no one else can or will do it. They are sworn to listen to the testimony of experts and other witnesses during a trial and to follow the law as the judge explains it to them.  It is their duty to uphold the law in the name of justice and for the safety of all patients, not just the patient who is unfortunate enough to be the “plaintiff” in the case they will decide.    Let’s hope for all of our sakes that they are up to the challenge.