Do Big Paydays Really Drive Tort Reform Foes?

The newspaper “Commercial Appeal” of Memphis recently published a letter to the editor titled “big paydays are the driving force behind tort-reform foes” in which the author, James Tutor states many negative things about medical malpractice attorneys. Of course he is entitled to his opinion. That’s what is great about America. People can spout off about whatever they want and the general public is free to agree or disagree. However, when someone engages in hostile rhetoric and name calling without facts to support their position, the public can be mislead by the person with the loudest voice. You know the old saying, “Tell a lie over and over and people start to believe it.”

For example, his claim that malpractice lawyers “wait in the wings like greedy lions, hoping physicians will make mistakes so they can pounce and collect a big monetary reward” is a purposeful attempt to shift the focus away from the merits of compensating medical malpractice victims. By stating that all medical malpractice attorneys are motivated by greed he is trying to tap into the readers negative emotions so they will not use logic to analyze his baseless conclusions. I am sure there are some attorneys that are motivated only by greed. That’s what makes his stereotype so powerful in the public’s mind. But the truth is there are much easier ways to make money if greed is your motivation. Just think about it. If you were motivated by greed would you spend in the neighborhood of $100,000 of your own money to finance a medical malpractice case and work for 3 to 5 years without getting paid knowing that the only way to get your money back and get paid for your time is to convince 6 people you have never met to compensate your client when statistically you will lose 65% to 75% of the time. Attorneys do this in this country every day.

Tutor’s next point is that the physicians who are “poorly trained and are dangerous to their patients in the practice of medicine” are policed by their peers, credentialing boards, medical societies and licensure boards. His hope in making this statement is that the reader has become so emotionally charged by his claims about greedy trial lawyers that they won’t notice he has failed to provide any factual support for his claim that physician governing bodies actually get rid of all the bad actors. I can tell you based on experience that having physicians govern themselves is often like the Fox guarding the henhouse. The most egregious actors are dealt with overtime. However, unless it can be shown that the doctor acted purposefully, the penalties are usually no more than a small monetary fine and some reeducation.

Of course, Mr. Tutor is completely correct when he states that “Most physicians in this country are adequately trained and have their patients’ best interests at heart.” This tug at the heartstrings to engender sympathy for the doctor once again purposefully misses the point. The fact that a doctor has good intentions does not change the fact that his or her negligent actions caused injury to their patient. The purpose of the tort system is not to punish doctors. The purpose is to compensate victims. The doctor’s good intentions will do nothing to pay for the damage that has been caused.

Mr. Tutor’s next statement is that damages should be capped at a reasonable fair sum. The problem with that statement is that each case is unique. What is reasonable in one situation may be totally unreasonable in another situation. Furthermore, capping damage’s actually penalizes the most catastrophically injured because they are always set arbitrarily lower than the value of such claims. For example, what cap on damages would Mr. tutor place on a 2-year-old toddler in a coma for the rest of his life because a nurse overdosed him on medication. Giving a jury of your peers the opportunity to listen to those unique circumstances and allocate the amount of damages based on the evidence presented is the fairest way to ensure adequate compensation.

Mr. Tutor’s final statement is really the icing on the cake. He claims that legal malpractice awards drive up the cost of providing medical services to all people due to ever-increasing premiums physicians pay to get malpractice insurance. Once again he provides no factual support for his statement. The truth is that medical malpractice awards add very little if anything to the cost of health care. The physician’s premiums may go down but very little if any of those savings actually trickle down to the consumer. Furthermore, physician’s premiums are just one factor in the overall equation. There are other aspects of the medical malpractice system that actually lower the cost of health insurance. For example, advocates of tort reform always fail to mention that any time money is awarded in a medical malpractice case, part of it must be used to repay health insurance, Medicare, Medicaid, and or Worker’s Compensation insurance for any money they paid for health care caused by the malpractice. For example, one of my client’s has incurred close to $1 million in medical care as a result of medical malpractice. If we achieve a recovery on her behalf, she will have to pay her health insurer that money. I don’t know about you, but my understanding of mathematics is that paying this money back should actually lower the cost of health care.


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