Medical Malpractice: The Rights of the Harmed

The ability to bring your grievances to a jury of your peers faces a very real challenge, as corporations and politicians seek to take away this critical right.
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The right to go to court when wronged is a right that most Americans take for granted. If someone negligently hurts another person, the harmed person should retain the right to hold the responsible party accountable.

But currently, the ability to bring your grievances to a jury of your peers faces a very real challenge, as corporations and politicians seek to take away this critical right. Rep. Phil Gingrey (R-Ga.), while eager to use the courts to seek justice for wrongs committed against him, has simultaneously introduced legislation that would limit that same access for other citizens.

In 2004, Gingrey filed a lawsuit and sought punitive damages from a jury of his peers after a car crash in which another driver allegedly rear-ended Gingrey's car, causing Gingrey to crash into the vehicle in front of him. In his lawsuit, Gingrey sought remuneration for "mental pain" and punitive damages to be determined by "the enlightened conscience of fair and impartial jurors." His complaint also said that he had incurred "special damages in the form of past, present and future medical and hospitalization expenses." Gingrey said that he "was injured grievously, has experienced conscious physical and mental pain, suffering, fright and distress in the past, and will continue to suffer the same in the future, for which he is entitled to recover general damages ... in amounts to be determined by a jury."

Gingrey, an obstetrician, is the original sponsor of the Help Efficient, Accessible, Low-cost, Timely Healthcare Act of 2011 (H.R. 5), which would allow for sweeping immunity from accountability for the health industry -- including doctors, nursing home operators, medical device manufacturers, pharmaceutical companies and hospitals. The bill would impose a $250,000 cap on non-economic damages that compensate patients for the pain and suffering that accompany any loss of normal functions, such as blindness, paralysis, loss of sexual function, disfigurement and loss of fertility. The idea that there is a one-size-fits-all payout that can compensate for the loss of a limb or the ability to have a child is an appalling one. Each situation is different, and those who seek compensation for wrongs through the court system deserve the assistance that they need to deal with their specific situation.

In addition, the bill also makes it virtually impossible for courts to award punitive damages against health industry players. Punitive damages are a rare punishment typically granted for particularly egregious behavior.

These cruel proposals would harm patients like Caroline Palmer, a Marietta, Ga., resident and Gingrey's constituent. Palmer recently wrote him a heartfelt letter, sharing her personal story, which perfectly illustrates the need for a robust system of justice and the preservation of the right of every American to hold those that cause them harm accountable.

In 2007, Palmer's arms were amputated as a result of medical errors committed by the hospital staff while they treated her for injuries from a car crash. Fortunately, she was able to obtain compensation through the legal system.

As Palmer said,

"All the elements of [Gingrey's] proposal will bring further pain to patients who have suffered severe injuries from medical malpractice. For the rest of my life, I will need some assistance from others because my arms are gone. So it is distressing for me to hear that legislators would stick a $250,000 price tag on severe injuries like the permanent loss of necessary bodily parts and functions. Every patient's injuries and circumstances should be considered on an individual basis. They should not be placed into a category as if one size fits all."

The legislation as proposed by Gingrey is being billed as a major cost-saver. And in this time of budget attention, ideas that theoretically save money draw congressional momentum. However, despite its billing, the savings from this type of limits in accountability are actually negligible. Medical malpractice lawsuits have declined dramatically in recent years. And in fact, fewer than 2.5 percent of malpractice victims ever sue.

If we are truly looking for a cost-saver, we need look no further than reducing easily preventable medical errors by improving the quality of care. Studies show preventable medical errors kill more than 100,000 Americans a year and injure millions more.

One final note of interest, Gingrey, as noted earlier, was a practicing doctor before coming to Congress. Recently, news reports revealed that he was involved in a $500,000 malpractice settlement in 2007. A pregnant woman sued a number of doctors, including Gingrey, saying that inappropriate care caused the loss of her fetus and other complications.

Gingrey seems intent on creating a two-tiered justice system in which on one hand he is able to exercise his own legal rights, but on the other hand, he seeks to limit cases that can affect him personally. Unfortunately, if he succeeds, his efforts will impact Americans who arguably need the courts most.

A version of this post appeared at Public Citizen.

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