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Tort “Reform” Works–To Deprive Medical Malpractice Victims Of Their Right To Recourse

Posted by Andrew J. Barovick | May 30, 2011 | 0 Comments

It's always heartening and reassuring to see that large corporations that manufacture poisons for human consumption–think Phillip Morris here– have gotten their money's worth from their efforts to promote the great lie that is tort “reform.”  You know.  It's the same story, basically, repeated over and over again. The plaintiff with the faked injury who conspires with the ethics-challenged plaintiff's lawyer, who limps into the courthouse with a frivolous case, i.e., one entirely lacking in merit, and somehow manages to fool the defense lawyers, their expert physicians who have examined the plaintiff, the judge and 12 jurors into awarding him millions of “jackpot justice” cash. I mean, think about it! Those poor defense lawyers at those large firms paid handsomely by the medical liablity insurance companies were fooled for about 3-4 years, the time it usually takes a medical malpractice case to get to trial or settle.  The defense lawyers gained no insight from their opportunities to depose the plaintiff for sometimes days at a time.  Their understanding of the case and its merits benefited not one bit from the crates of medical records obtained from every doctor that ever looked at the plaintiff prior to the lawsuit, even after these records were analyzed by physicians on staff with the insurance company.  The defense lawyers had no chance to observe the demeanor and credibility of the plaintiff during those drawn-out depositions, so that they would of course have no idea whether a judge or jury would appreciate their narrative of events at a trial.

Not surprisingly,   medical malpractice suits are down , according to technorati, while injuries resulting from malpractice are up.  That is the kind of perversity that results from well-funded efforts aimed at keeping the negligently injured out of the courthouse.  How is that accomplished? One favorite tactic is to shorten the time one has to bring the lawsuit.  Another is to place arbitrary caps on damage awards, insuring that victims who have already suffered debilitating injuries will think twice before embarking on a painful, drawn-out journey that will not result in very much compensation at the end, even if the journey is a successful one. But the favorite tactic is the one described above–tarnish plaintiffs, their lawyers, their motives for seeking redress in court, everything about them.

Maybe it's time for a different way of thinking about victims of medical malpractice.  And maybe an organization devoted to consumer safety has a suggestion worth hearing.

“There is a crisis in medical malpractice, not lawsuits,” said Taylor Lincoln, research director for Public Citizen's Congress Watch division and the author of the new study. “Trying to stop people from being compensated for catastrophic injuries is not the answer. We should instead concentrate on making hospitals safer and disciplining doctors who repeatedly commit malpractice.”

I think Mr. Lincoln has a point.  And I know, based on a  recently concluded study right here at NY Presbyterian Medical Center, that an OB/GYN patient-safety initiative, properly adhered to, will save lives, and millions of dollars in liability costs for hospitals. Yet a bill that proposes using such a system in all New York State hospitals is being virtually ignored.  I think that says something about the state of our civil justice system in New York.  Unfortunately, because this is a family blawg, I can't print that statement here.

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.