As a graduate of Princeton University and a medical Doctor, you
know the meaning of the phrases " in the nationís service," and
"first, do no harm." The same physician, who volunteers in Africa
to treat patients, is the leader of the U.S. Senate who, against
massively contrary data, is pressing cruelly for legislation that
would say to the worst wrongfully injured medical malpractice victims‚
no matter how outrageous the behavior that led to their total disability
or other serious casualty: they will receive, under your bill, no
more than a maximum of $250,000 for a lifetime of pain and suffering,
while prohibiting the state trial judge from informing the jury
about this arbitrary ceiling.
The medical malpractice crisis, as Business Week editorialized
years ago, is malpractice. As a physician your first calling is
prevention, and so true is that calling as a legislator. Here is
what you know or should know:
1. Death and injury due to medical and hospital negligence, incompetence
or worse is one of the nationís most preventable epidemics of
violence. Your fellow physicians at the Harvard School of Public
Health estimated that just in hospitals alone, apart from emergency
rooms, about 80,000 people lose their lives annually due to such
causes. Other official studies report hundreds of thousands of
injuries yearly. As a practicing physician, you know that it only
takes a minority of bad doctors, nursing homes, hospitals and
other companies covered by this legislation to generate a wave
of mayhem. Bad doctors are rarely disciplined. They give other
good doctors nightmares in the same workplace and only a tiny
minority of these casualties lead to a lawsuit. As the Harvard
study concluded‚ it is not a matter of too many lawsuits, but
of too few lawsuits. Neither justice nor compensation nor deterrence
is available for those innocent Americans who die or suffer. This
is one of several areas of the civil justice system that can be
improved, instead of degraded.
What are you, the leader of the Senate, going to do about known
ways to reduce this loss of life and remove physicians who should
not be licensed to practice medicine? There are enough studies;
it is time for Congressional action to act on an annual fatality
toll in the U.S. larger than the number of lives lost in motor
vehicle crashes, by fire and because of AIDS combined.
2. You know that the insurance industry does next to nothing
about prevention, including an absence of experience loss rating.
This industry engages in over-classification of physicians thereby
reducing the pool of insureds per specialty and enabling the companies
to gouge a few specialties whose outcry shifts attention from
the industry to the innocent victims. If the auto insurers quadrupled
their premiums, would you be taking away the rights of injured
motorists or would you inquire about the premium gouging that
has no basis in loss data? All the best data show that malpractice
payouts are declining as insurance premiums have spiked, that
states with caps on pain and suffering saw medium doctorsí malpractice
insurance premiums rise faster than states without caps, that
it is Californiaís later tougher rate regulation, not its earlier
cruel cap, that has held rates below what they would have been.
The second largest medical malpractice insurer in California,
SCPIE, testified that the cap did not do the job. You and your
allies are misrepresenting it did.
3. You know that a widely publicized major study appearing in
the June 26, 2003 issue of the New England Journal of Medicine
concluded that nearly half of all patients do not receive "the
standard processes involved in healthcare in the United States."
This shocking indictment of the inadequate quality of delivered
healthcare was described by the authors as posing "serious threats
to the health of the American public. Strategies to reduce these
deficits in care are warranted." And your obsession is to take
away rights from innocent victims of bad medical or hospital care?
What "strategies" are you pursuing to counter these documented
"serious threats to the health of the American public?"
4. In the just released June 2003 issue of Research Activities
published by the U.S. Department of Health and Human Services,
a study described patient safety problems in hospitalized children
who face "a 2-18 times greater risk of death than children that
did not have such a problem." This report by the Agency for Healthcare
Research and Quality noted that a majority of birth trauma infants
were "more likely to be black or Hispanic and to be born in institutions
that had no residents on staff, had a lower percentage of beds
in intensive care units, or had a lower volume of inpatient surgical
procedures."
What are you going to do about what this study called "long bone
and skull fractures"?
5. You know that more than a few top insurance executives make
$250,000 a week, every week, or $250,000 a fortnight, every fortnight,
or $250,000 a month, every month, without any pain and suffering.
See the August, 2003 issue of The Insurance Forum,
for many names of these executives. (Twelve million dollars a
year gives an executive $250,000 a week!). These insurance executive
compensations come out of the same consumer premiums that verdicts
and settlements do.
What are you going to do about the "out of control" "excessive"
insurance mogulsí pay? Why first pick on a brain damaged infant
or an immobilized adult due to malpractice?
6. Why are you pushing for federal pre-emption of state courts,
judges and jurors without demonstrating in the slightest that
they are unable, unwilling or incompetent to properly resolve
these judicial conflicts? Have you even consulted state judges?
I have spoken to numerous state judges. Not one believes that
there are any grounds for the federal government to tie their
hands and, without seeing, hearing or evaluating the evidence,
impose an absentee one shoe fits all brand of injustice. (Most
state judges were formerly business lawyers who, like any judge,
have no trouble throwing out any "frivolous lawsuits" that you
keep referring to without any documentation.)
Why are you so contemptuous of Tennesseeís judges and jurors
that you believe the federal government should regulate them with
federal power?
7. Apparently you believe in discriminatory price control.
You want to control the contingent fee of plaintiff attorneys
but not the large hourly fees of defense attorneys. As you know,
plaintiff attorneys only receive compensation if they prevail
for their client‚it is as if doctors would only be paid if they
cured their patients.
Why control attorneysí contingent prices for plaintiffs,
but not control definite medical, hospital and insurance premium
prices? Is there a bit of a bully lurking in the Senate leadershipís
designs?
8. Your legislation, S.11, would impose many other federal controls
over state courts, the historic jurisdiction for tort law cases,
which have not been adequately publicized, so coarse are they.
These include rigging the pool of expert witnesses to favor defendants,
requiring minors to file suit before they become adults, capping
punitive damages even for criminal negligence or worse (and there
are cases where physicians have been jailed for outright criminal
behavior), and even shielding manufacturers of medical products
and drugs if they meet FDA standards, however obsolete or anemic
these standards turn out to be.
9. It is well known that obstructing the innocent injured away
from their full day in court is a periodic demonstration of cash
register politics. As Senator Mitch McConnell and Senator John
Ensign know, the PACs from all points of the compass send in their
checks. But you are a doctor. You know better than anyone in your
Party of the mistakes, negligence or worse in a profession, beset
by many complex decisions and a minority of bad doctors (5.2 percent
of doctors are responsible for 55 percent of malpractice payouts
over time). Some of these human casualties are so preventable
that their recurrence without incurring professional disciplinary
action is, as one doctor put it, "mind-boggling." You know or
should know that whenever investment and interest incomes decline
(as in the past three years in the stock market) the insurance
companies dust off their old strategy to divide the physicians
from their patients (because the companies know that many physicians
just donít want to be suable at all) and steer them to state legislatures
and Congress. What the insurance companies are not telling the
public is that were all doctors to pay the same premium, the average
yearly cost would be under $10,000 a yearó about a third of what
a seasoned receptionist receives.
What are you going to do about the manipulation and largely unregulated
actuarial and pricing practices of this industry so that Americans
retain their full 7th amendment rights under our Constitution?
Please reconsider your position in accord with the finest medical
ethics and responsibilities.