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When The Silence From Tort “Reformers” Speaks Louder Than Words

Posted by Andrew J. Barovick | Mar 19, 2011 | 0 Comments

When you look beyond the tired and twisted rhetoric employed by advocates for tort “reform,” you will notice an unsettling trend.  They never address the source of what they label “the medical malpractice crisis”–negligent medical care that injures and kills patients.  And so they walk around as if they somehow missed the news that a world-renowned medical center here in NYC reduced payouts for medical malpractice claims by 99% through the institution of a rigorous patient-safety protocol in its OB/GYN department.  And how about this “minor” detail: sentinel events like avoidable deaths and severe injuries dropped from 5 in 2000 to 0 over the course of 2008-2009.  It sounds important, because it is. But whatever was achieved, and proven, through the NY Hospital Weill Cornell Medical Center's study, you didn't hear about if from the tort “reformers.”

So it is no surprise that the same tort “reformers” turn a blind eye to a related, but equally important source of medical error: the failure to properly discipline error-prone physicians.  This is a nationwide catastrophe, as I discussed in a recent post .  And it is not exactly a long jump, logically speaking, to conclude that the failure by hospitals and medical societies to follow up with their own disciplinary findings allows error-prone doctors to continue to hurt and kill patients.

What you do hear about from the tort “reformers” is “lawsuit abuse.”  They love terms like: “frivolous lawsuits,” and seek to portray victims of negligence and their “trial lawyers” as lawsuit-happy opportunists who file flimsy cases at the first sniff of the chance to obtain all that easy money, that “jackpot justice” that somehow automatically comes into their bank accounts, despite the traditional hurdles of scrutiny by insurance company lawyers, judges and juries.  Not surprisingly, many doctors, and particularly those in need of discipline, are big fans of tort “reform.” The movement has a very attractive element for them: no accountability to patients for their errors.  So it was somehow not surprising to see this choice item .  It's about a Delaware surgeon who chafed under the discipline rightfully imposed on him. But he didn't stop there.  He sued his hospital over its unfairness, as he saw nothing wrong with screaming at OR staff while waiving surgical drills at them, or inviting reporters into his OR under false pretenses in a failed effort at self-promotion.  And I'm going to go out on a limb here, and guess that the patient was not informed that he would be center stage in a show created by his surgeon.

When will the tort “reformers” talk about this frivolous lawsuit?  It certainly added to our nation's healthcare costs, as the hosptial involved had to defend itself in court. In fact, as the article shows, there was a dispute about legal fees.  Hello out there? Tort “reformers”?  Your silence is deafening.

About the Author

Andrew J. Barovick

Mr. Barovick is a graduate of Columbia College and Cardozo School of Law. He began his legal career at the Queens District Attorney’s Office, where he tried over 20 felonies to verdict, and argued an equal number of appeals before the Appellate Division, Second Department, the New York Court of Appeals and the United States Court of Appeals for the Second Circuit.


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$7.9 million dollars for infant client who suffered severe brain injuries due to post- delivery medical malpractice.

$500,000 wrongful death/medical malpractice settlement on behalf of patient brought to hospital emergency room with serious injuries who suffered complications while unmonitored and died.

$425,000 wrongful death/medical malpractice settlement during trial on behalf of senior hospital patient whose surgeon failed to timely address her worsening symptoms, resulting in her death.

$250,000 to young man whose physician failed to diagnose an impending torsion testicle, causing the loss of the affected testicle.

$200,000 to young mother whose OB/GYN failed to timely diagnose and treat her ectopic pregnancy, resulting in excruciating, long-term pain and the need for surgery to address the ectopic pregnancy once it was diagnosed.