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A failed solution for medical negligence. .

In 1994, Frank Cornelius wrote in the New York Times that restricting Americans' legal rights was not a solution to medical negligence. There's no doubt he was an expert on the issue, having been both an insurance industry lobbyist and a victim of devastating medical malpractice.

As a lobbyist, Cornelius helped convince the Indiana legislature to pass a $500,000 cap on malpractice damages in 1975. "I argued successfully that such limits would reduce health care costs and encourage physicians to stay in Indiana," he explained nearly 20 years later in his editorial, "Crushed by My Own Reform."

By 1990, Cornelius was in a wheelchair, in constant pain, and using a respirator to breathe after a series of medical mistakes that began with routine knee surgery. His medical bills and lost wages were projected to reach $5 million. The cap he had worked to enact forced him to settle for $500,000.

"All my suffering might have been worthwhile, on some cosmic scale, if the law had accomplished its stated purpose. But it hasn't," Cornelius wrote, conceding that the cap had done nothing to curb health care costs for consumers, hold down insurance premiums for doctors, or improve patient care.

Admitting that caps actually harm patients by reducing accountability, Cornelius concluded that medical negligence would be reduced "only when the medical industry begins to effectively police its own." He didn't expect to live to see that day--and sadly, he did not.

In 2003, our health care system is no closer to cleaning up its act than it was in 1994. The Washington Post reported recently that little has been done to improve patient safety since 1999, the year the Institute of Medicine shocked America with a report detailing the shamefully high cost of preventable medical errors: 98,000 unnecessary deaths, 1 million injuries, and $29 billion annually.

The barrier to improving patient safety isn't a lack of knowledge about what works. It's the quest for corporate profits combined with resistance by a medical profession that the Post concluded--in an editorial entitled "A Medical Enron"--is incapable of regulating itself.

The Post reported these facts:

* One in five drugs dispensed in hospitals was either the wrong medication or the wrong dose, or was given at the wrong time or to the wrong patient. Computerized drug-ordering systems are proven to dramatically reduce errors, but only 2.5 percent of hospitals have them--primarily because of cost and physician resistance.

* Operations on the wrong body part or wrong patient have increased, but doctors resist implementing uniform procedures, such as marking the correct site in consultation with patients before surgery.

* Despite evidence that fatigue leads to mistakes, medical interns and residents continue to work 80 to 120 hours per week, with minimal supervision on nights and weekends when they are expected to make life-and-death decisions. Many hospitals also impose heavy caseloads on nurses, which increases the risk of patient death, according to recent studies.

We face an inexcusable national health care scandal on par with Enron and WorldCom. But Congress isn't stepping in to regulate the medical profession, as it did with accountants. Instead, at the behest of the insurance and medical industries, Congress and many state legislatures are focused on capping compensation for injured patients--the same failed "solution" Frank Cornelius warned about. Defying logic, they want less accountability for the health care industry.

Without the commitment of every trial lawyer in America, we will not be able to prevent Congress from imposing mandatory national restrictions on the legal rights of injured patients and their families. The medical malpractice "reforms" being considered by the 108th Congress would preempt state laws that protect patients and consumers, while leaving those that favor defendants in place.

States currently without caps (or with a higher cap) would be forced to accept a $250,000 limit on noneconomic damages, as well as restrictions on punitive damages. Other provisions include a shorter statute of limitations, elimination of joint liability, and severe restrictions on contingent attorney fees.

These unprecedented and draconian restrictions would apply not only to malpractice cases, but also to products liability claims against drug and medical-device makers, and to civil actions against HMOs and insurers.

And the anticonsumer faction that is running Congress with the support of the White House and corporate America has no intention of stopping there. For that reason, no trial lawyer can afford to sit back complacently with the attitude that "this won't hurt my clients." The threat of a federal takeover of many areas of state tort law is very real. We cannot afford to lose a single round.

ATLA is beefing up its lobbying, grassroots, public relations, and constitutional challenge efforts to fight this threat. But we cannot prevail without the courage, commitment, and conviction of each and every member.

Our opponents believe that their time has come. They are wrong. Together and united, we can prevent them from transforming "justice for all" into "justice for some."
Your friend,
Mary Alexander
COPYRIGHT 2003 American Association for Justice
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Author:Alexander, Mary
Date:Feb 1, 2003
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