Tort Reform - Is your conscience bothering you Dr. Wax?

It’s titled, The downside of tort reform by Arnold Wax, M.D. What it should be titled is, “Why my conscience keeps me awake at night.”

Dr. Wax is a medical oncologist from Nevada. He’s been active in promoting tort reform measures that have largely been implemented in that state. He recently experienced a clear case of substandard medical care that he was convinced would result in a fair result in her favor. So convinced was he of the substandard care that he testified against his fellow defendant doctor. So, what did happen? The defendant-doctor was found to be negligent and the patient-plaintiff was awarded zero damages. This is the same sort of result Jerrica’s estate and parents received from a Polk County, Iowa jury. The same jury that valued human life less than the State of Iowa values road kill. So what did Dr. Wax have to say about this result?

As I'd expected, Mary sued the pathologist who had misread the original biopsy. Soon after, one of her attorneys asked me to serve as an expert witness in the case. As her treating physician, I felt a moral obligation to support Mary's claim. Her lawyer said she was asking only for damages to help provide for her grandchildren—which ultimately became more important when her husband died unexpectedly from a post-surgical pulmonary embolus.

It appeared that the case would be resolved quickly, considering that the defendant freely admitted his error. However, this turned out to be far from true.

 

….

The trial lasted six days. I was on the witness stand for two hours for direct and cross examination. I described the statistical decrease in Mary's five-year survival, as well as all treatment variations between the different stages of melanoma. I also stated that I thought the pathologist's admission of his mistake was "honorable."

As I'd expected, the jury found the original pathologist negligent. But, to my surprise, Mary wasn't awarded any damages.

….

The trial judge was incensed by the verdict, because the jury didn't follow the legal standard that should have been applied in the case. I was later informed that the defense attorneys planned to go after Mary for court costs, something that the judge vowed he'd never let happen.

Today, Mary is a widowed grandmother, caring for her grandchildren with few resources—injured, admittedly, by a physician's error. She's been off of all therapies since the interferon, which proved successful. But if her melanoma recurs, it will likely be fatal.

And what does the doctor think today about his past tort reformation efforts?

When I helped spearhead the tort reform movement in Nevada, I didn't foresee the unintended consequences of innocent, truly injured individuals not receiving their rightful awards due to jurors' misguided emotions. Had I been aware of that possibility, what would I have done?

If you’d like to read Dr. Wax’s article in  Medical Economics follow the link. My colleague, Brooks Schuelke from Austin wrote a round-up of personal injury blawgs that includes resources and posts about civil justice “reforms”. Eric Turkewitz a New York lawyer who blawgs about personal injury issues also discussed this same article.