Dallas medical malpractice victim loses $10 million due to Tort Reform
On February 13, 2009 a Dallas County jury awarded $17.5 million to David Fitzgerald, the alleged victim of Medical Malpractice, only to have the verdict reduced by $10 million. So what gives?
In 2003 a tort reform measure was put into effect in The State of Texas which set limits to the total amount that a medical malpractice victim can receive. To summarize, the law stipulates that a victim could receive no more than $250,000 in pain and suffering or other similar damages. This measure came to pass in the name of "the general good of the public" by way of protecting doctors from high dollar law suits. Supporters of the tort reform measure contended that if no such measure was implemented the number of medical doctors in Texas would rapidly decline, as many doctors could not afford the costs associated with such civil actions. Certainly that seems like a reasonable concept on paper.
The problem with this tort reform measure is that, in reality, many of the victims of medical malpractice are effectively robbed of the rights that they would have if they suffered similar injuries in another type of accident-- such as a car accident for example.
Of the $17.5 million of Mr. Fitzgerald's verdict, $10 million was for pain and suffering (and or disfigurement/ mental anguish/ loss of consortium/ other such damages), of which he will only receive $250,000. The remaining $7.5 million of the verdict is made up of more "tangible" damages such as past and future medical expenses and lost wages. The tort reform laws do enable a victim to receive compensation for these more tangible damages with no limit, thus accounting for the remaining $7.5 million.
The initial reaction to the outcome of this case may be, "Well, he still got $7.5 million and that's not bad." In reality, that's not quite as good as it seems. Since that portion is likely made of medical expenses and lost wages only, most of the money is spoken for.
For illustrative purposes, let's assume that Mr. Fitzgerald made $40,000 per year in his former position as an apartment maintenance technician. If he lived for another 40 years that would total $1.6 million dollars of future earnings. Bare in mind that this is money that he would have earned anyway. Being "awarded" that money does not make him any better off that he would have been. It's best to think of this as an advance on the money that he normally would have made. That would imply $5.9 million of his verdict goes to past and future medical expenses. The thing you must consider is that of the $5.9 million for medical expenses, virtually every dime will be spent on medical care just to help him deal with the life long difficulties he now faces.
On top of that you have to consider the attorney fees. The industry standard rate, that his attorneys likely charged him, is in the neighborhood of 33%-40%. When you factor all of these pieces of the equation it becomes very obvious that in spite of the fact that a jury felt he pain and suffering commanded such a verdict, and in spite of the fact that his attorneys worked hard to get him as much as they could, the law simply kept Mr. Fitzgerald from getting a fair deal.
Think about it. Would you suffer the loss of both of your arms and legs for $250,000 in compensation for pain and suffering?
Disclaimer: Just for the record, and in case you missed it, Mr. Fitzgerald is not a client of my firm and never has been. This is merely a case that caught my attention. Furthermore, the numbers used are for illustrative purposes and are based off of loose figures mentioned in the Dallas Morning News. The interpretation of those numbers is entirely speculative, but grounded in reality based on the numerous similar cases I have worked in my 20 years of practicing the exact same type of law.
Posted by:
Dallas Medical Malpractice Attorney Mike Grossman
| Posted on:
2/18/2009
| Comments (1)
The stories and situations mentioned on this blog are for informational purposes
only. Grossman Law Offices does not claim to represent any party referenced in this
post. This blog exists to raise public awareness of the very real dangers we face
every day and to serve as a central location where information and opinions can
be exchanged with regard to the way that the situations mentioned on this site are
impacted by existing legal statutes.
Bookmark this post:
Visitor Comments
Cory Carlson of Grossman Law Offices said:
Great article Mike!
I think tort reform is another example of the potentially negative effects of a social issue turning political.
I truly believe that the livelihoods of medical professionals should be protected to some degree or another. I think that we can all agree that the value that most responsible medical professionals provide to our society is immeasurable. With that in mind,
I agree that it is crucial to take steps necessary to ensure that there are not predatory law suits that could potentially drive all of the current and would-be medical professionals out of the medical field. But should we achieve these goals by shifting the balance in the opposite direction? What about the rights of the accident victim?
I do not think that the current tort reform measure is the fair and socially responsible answer. Unfortunately, I am not a rocket scientist, and, quite fortunately, I am not a political expert, but I feel that you do not need to be either to figure out that the current system is flawed. Sure, in the past there were frivolous lawsuits that put many doctors in harm's way and tort reform has all but alleviated all of that problem. But in it's place we have created an entirely new problem. Many people still suffer due to mistakes and outright negligence on behalf of doctors. I find it offensive to simply write these victims off as a necessary byproduct of protecting doctors, especially doctors who ARE found to be entirely negligent.
So what is the solution?
I see it like this: the problem that we originally sought to fix with the tort reform measure was to protect doctors from frivolous lawsuits. Therefore, we need a system for determining the legitimacy of a medical malpractice claim. I propose that a board, of sorts, is assembled that is composed of a panel of doctors from several major fields. This can be thought of as a political position akin to a judge. This board will review every potential medical malpractice case with all of the plaintiff's and defendant's non-critical personal information (name, race, etc.) redacted from the application thereby enabling the board of medical professionals to review the facts and allegations in an unbiased format. If, at the completion of the review, the board forms a collective medical opinion that malpractice has occurred, then the case may be administered to the court system and a subsequent lawsuit or other civil action can commence.
To keep all of the would-be scammers and unscrupulous attorneys from filing frivolous lawsuits, make the application fee for the advisory boards consideration $20,000 per application. If a plaintiff's attorney had to pay $20,000 simply to have the board review the case and determine if it qualifies to pass to the next level, you could rest assured this would insulate the court system from being inundated with a great number of cases, and would keep attorneys from submitting all but the most legitimate cases. The $20,000 could serve as the basis of compensation for the advisory board's members and would not require any taxpayer money to supplement the process.
If the claim of malpractice is found to be reasonable by the board of doctors, then it goes through the normal process of a jury trial with no cap on pain and suffering and other such damages.
Everybody wins.
If someone is legitimately hurt by a doctor, they have the same rights as a person who was hit by an 18-wheeler, or injured on an amusement park ride, and if the victim's injury is found to be caused by a freak accident or some other means that is not the fault of the doctor, then the case never makes it to the court system and doctors need not worry about such frivolous law suits.
I'm sure there are underlying elements that would make this idea more complicated than it sounds on paper. Again, I stress my lack of formal education in the discipline of rocket science and blame that deficiency for my suggesting such a straightforward plan which makes too much sense to ever have a chance of becoming a legitimate political issue. These issues tend to take up residence in the realm of over complication.
********************************
|
