Maybe you can explain your position to Dylan Malone. Read on.

Statement of Dylan Malone before the House Energy and Commerce Committee Health Subcommittee Hearing on “Current Issues Related to Medical Liability Reform” February 10, 2005, 1 p.m.

Mr. Chairman and Members of the Subcommittee: Good afternoon and thank you for this opportunity to speak on behalf my son Ian, who died last May, never having spoken a word. The victim of medical negligence during a botched delivery, he did not live to see his fifth birthday.

Ian is not alone. Medical errors are one of the leading causes of death and injury in our nation. As many as 98,000 Americans die every year as a result of preventable medical errors according to a National Academies of Sciences Institute of Medicine study. More people die from medical negligence and mistakes each year than from highway accidents, drunk driving, breast cancer and AIDS. According to a 1997 University of Chicago study the number of injuries caused by medical accidents in inpatient hospital settings could be as high as three million and cost as much as $200 billion.

But Ian was more than a statistic to my wife and I, he was our son. You never saw a more excited father-to-be than I was in the summer of 1999 when Christine was prescribed the drug Cytotec to induce labor, we didn’t know that the drug’s manufacturer warned against the possibility of serious brain damage if used by pregnant women, but our doctor did. In fact, the drug is used in third world countries to induce abortions because it causes violent contractions. Every bottle of Cytotec shows a pregnant woman with a no sign drawn through her. To hide this from us the doctor gave us the pills in a simple brown envelope. The Cytotec caused such unnaturally powerful contractions that Ian was literally smothered in the womb; they lost his heartbeat about 20 minutes before he was delivered. A
stillborn, his little body color was more grey than blue, and he had to be resuscitated.

Because Ian’s health care providers falsified his chart to show a steady heartbeat throughout labor, made no mention of Cytotec, and listed him as breathing with a heartbeat at delivery, the intensive care unit had no idea of the severity of his injuries. This cover-up attempt probably made Ian’s outcome even worse. The resulting severe brain damage left Ian unable to swallow, so the secretions had to be suctioned from his mouth by machine. He was fed by way of a tube into his abdomen, and suffered from seizures and aspiration pneumonias. The insurance companies didn’t want to pay for his care – they coldly suggested we put him up for adoption.

Eventually we set out to tell Ian’s story to a jury. There was a settlement and we were able to provide the hundreds of thousands of dollars of care Ian needed every year. I am committed to honoring his memory by fighting to improve the system for those who will come after him. I strongly believe that there are many things we can do to prevent many instances of negligence and medical errors. I want people to know that medical negligence is a serious problem in this nation, and that instead of fixing it, President Bush wants to pass a law that would target all victims of medical negligence no matter how severe the injury or how horrible the care. This is a very important point. The backers of this radical proposal to change medical malpractice in our country would hurt ALL victims – not just those who have so-called frivolous cases. It really offends me when I hear that word. I want the President to fix the health care mess and to stop blaming victims like my son Ian. My son’s life was not frivolous. Let’s start with medical negligence and medical errors. The President wants to cap medical malpractice awards at $250,000 – I say if we’re going to have a cap – let us cap the number of people who suffer from medical negligence every year. It’s a national scandal that as many as 100,000 people die from medical errors annually.

We didn’t know it then, but the doctor who killed Ian had lost eight suits before we ever saw him, and he is still practicing medicine today. In fact, other children have been terribly injured or have died under his care since Ian’s birth, largely because the medical board refuses to act on his license, for Ian’s injury he paid only a $1,000 fine. Of course, most doctors are highly skilled and care deeply about helping their patients. However, a small minority of doctors are causing the majority of the damage, and we have to deal with this life and death issue. We also need to make sure that insurance companies don’t gouge doctors for their medical malpractice insurance premiums. Doctors should only have to pay rates that are based on what the insurance companies have actually paid out in claims. The bottom line is that I think it should be up to juries to decide whether a lawsuit shouldn’t be in court. I trust juries, not the insurance companies and HMOs. We all should. It’s one of our most valued rights as Americans. People need to know that this debate is really about protecting our constitutional right to a trial by jury. And when they do, I don’t think the American people will stand for this assault on one of our most fundamental freedoms. Nearly 100,000 Americans die every year from preventable medical errors, that’s the number we need to cap. Thank you for allowing me to be here today.

Who do you think makes more money? The top 100 law firms in the country, all added up — or the top 100 hospitals in the country — all added up?

In life disagreements arise and sometimes the only solution is a legal one. My business has dealt with many lawsuits just in the first few years of operation. Sometimes the lawyers are dicks and sometimes the person I’m suing/is suing me is a dick. I don’t take these lawsuits personally, because it’s a cost of doing business in this society.

I understand that sometimes lawsuits arise, because of negative outcomes and not due to any fault of the doctor. But how’s a patient supposed to know whether the doctor did or didn’t screw up without working with an attorney. Is it easy for patients to understand and obtain information regarding their care in this archaic health care system we have?

I hate siding with an attorney (CuriousJD), but some of you docs are looking in the wrong direction to place blame.

My favorite comment on this article: “If you can find an office based specialty, no hospital can force you to buy medmal insurance. Find a state that will let you practice without insurance, and find a lawyer that will help you protect the assets that your labors allow you to accumulate, and set aside a few dollars to pay a lawyer to defend you when the inevitable lawsuit comes in. In the first set of questions that you will be required to answer (lawyers call them interrogatories), there is always an inquiry into your insurance coverage (funny how that matters). When they find out that you are not low hanging fruit for them to pluck, see how fast they drop the suit.”

That’s a sweet thought jb. Don’t give any compensation to someone you might accidentally injure.

I pay high worker’s comp insurance in my business. It sucks and there needs to be reform, but if one of my employees were to be seriously injured I would want them compensated.

Maybe we need some sort of no-fault compensation system for injured patients. Remember not all lawyers are evil. Some actually help people recover money that is owed. I dislike the lawyers that sue me, but I love the lawyer that protects and recovers for me.

Thank god I bailed on med school.

Let’s see if you believe in the value and goals of torts.

End all self-dealt lawyer immunities, especially those shielding them from adverse third party liability. End all self-dealt judicial immunities. Let all lawyers and judges carry insurance, see how they enjoy being sued for their errors.

This is not loser pays. This is better. Loser gets sued for deviating from professional standards of care.

If a lawyer deviates from lawyer standard of professional care, as testified to by a lawyering expert, let the lawyer be sued by the adverse third party, the doctor defendant he damaged so badly by the filing of a frivolous lawsuit.

All losing lawsuits get reported to the Disciplinary Counsel for review of any violation of the Rule against the filing of lawsuits without merit. If the DC finds a deviation, then in the above lawsuit against the lawyer, there is negligence per se, at a minimum.

If the lawyer loses many lawsuits, that will represent due warning to him about his ability level. After losing 3 lawsuits in a lifetime, all subsequent doctor lawsuits are res ipse loquitor (”the thing speaks for itself,” thus needs no real proof).

If you believe torts can improve a product or service, support the end of all self-dealt, corrupting lawyer immunities.

In response to some of your other non-sequiturs:
If lawsuits were filed only in cases of true malpractice, we would not be having this discussion. Operations on the wrong side of the brain, or on the wrong patient, and similar, deserve the large rewards they get. These are very rare, and not common enough to occupy the time of your colleagues. They therefore have to go after the cerebral palsy cases, ruptured appendixes, unusual chest pain, faint to non-detectable mammographic abnormalities that are oh-so-clear in retrospect, but a matter of judgement in the real prospective world.

Yes I know of multiple cases where nothing medically wrong was done, but resulted in a large award. One of my competitors was hit with a million-plus trial verdict after one of his surgical patients had a stroke. I was deposed and reviewed the entire record, and I am certain that he did nothing wrong. I review medmal cases for a defendants’ law firm, and there is no question but that the plaintiff lawyers shop around for experts until they find one that will agree to testify in their favor, even if the plaintiff’s experts contradict each other. I have seen it as I review their depositions.

Why would I have a problem obtaining the services of a trial lawyer if I had a good case? Even if they knew of my policy of declining to care for medmal attorneys, I pose no threat to them. I am nothing but a potential profit center to them. My profession and my policies are of no concern to them.

I have tremendous sympathy for patients with bad outcomes, especially if I have been involved in their care. That does not mean that it is my fault that they are in that situation. When there is a collision at an intersection, it is obvious that one of the parties is at fault, and the jury appropriately makes a decision. In the medical setting, juries hear from persuasive experts on each side, which tend to cancel each other out. They they see the little girl with pigtails in a wheelchair, opposed by the insured physician, and sometimes their sympathy overwhelms common sense. That is a major reason why we have insurance.

When alois says he doesn’t care how much his insurer’s execs make, that lets me know that his only goal is to stifle the rights of those who have been injured, regardless of the benefit to anyone else. He complains about his malpractice rates with no clue as to how insurance even works. It’s no longer about fairness, it’s about sticking it to the injured people. You think you’re hurting their lawyers, as if a talented trial lawyer won’t find work in another field. But you’re just piling on the weakest members of our society. And the sad thing is, you can never fathom being on the other side of that coin.

So yeah, I’m going to respond, because maybe some have a more open mind, and when they read this, it at least raises a question in their mind about this alleged “crisis” and how little tort reform actually helps physicians or patients. I have a lot of respect for physicians, and I imagine we’d probably get along pretty well other than on this issue, though. But I think the one real bonus to law school over medical school is that it requires you to see both sides of an issue. Something that is sorely lacking in some physicians.

1. I’m not suggesting that a medical student cannot assess the risk. But let’s be honest, most physicians have no clue about what goes on in a courtroom. They think they know, but 90% have never been in one. What’s more, they have no idea what goes into the plaintiff’s side of a case. That’s why that article I mentioned earlier was so important.

2. You’re right, one frivolous lawsuit is one too many. However, not a single tort reform proposal addresses so called “frivolous” suits. And it appears from reading most posts on here, that physicians have an uncanny ability to tell a “frivolous” lawsuit by reading a press release or newspaper article without ever seeing a single medical record. How is that possible?

3. The AMA is no more accurate than ATLA. They’re lobbying organizations, and rare is any study in this debate that isn’t tinged by politics. Although I will say, for probably the most fair assessment of the whole issue, Medical Economics does an excellent job here. All sides would do well to read it.

http://www.memag.com/memag/article/articleDetail.jsp?id=141338

4. Physicians’ average yearly compensation, according to the Dept. of Labor, is higher than any other profession. It outstrips lawyers’ by nearly 50%. Rangel posted the stats last month or the one before. Check his site for the link.

5. Do you think that only plaintiff’s lawyers pick juries? That there aren’t defense lawyers there too? Do you have any idea how juries are picked? How many strikes out of the jury pool do you think they get? If juries don’t revere you, how do you explain the historical 80% win rate? This belief that juries are just simpletons there to be fooled illustrates the incredible arrogance of physicians. As if others cannot comprehend their greatness. Is it that hard to determine when someone operates on the wrong side of one’s brain? Misreads a report resulting in a double mastectomy?

6. What does telling a good lawyer from a bad one have to do with anything? At least with us, you can call the state bar and find out who has been disciplined and for what.

7. Are all doctors wonderful? Do none of you know any hacks that you wouldn’t send your family to? If you don’t want to go to depositions, settle the case. Hell, if you hadn’t stonewalled from the beginning you probably wouldn’t be in a case. Every minute a truck driver is renewing his license, it takes away from what he does best. Every time the engineer who rearended you is giving a deposition in your case, it’s taking away from what he does best. The argument that because you have a medical degree you should somehow be immune from the legal system is the height of arrogance. And again, you assume every suit is frivolous and every physician blameless.

8. How many cases have you reviewed the medical records in where the physician met the standard of care and still lost? I’m willing to bet none, yet you’re quite sure the majority of the cases where the patient wins were wrongly decided. Again, that’s pretty arrogant. And actually, if you and I disagree on who ran the stoplight, and we both fervently believe we’re right, the judge or jury will send one of us home with a judgment against us believing we were right. The comparison is right on.

9. The lottery argument may be the worst one. Do you really think that a case involving millions of dollars in economic and non-economic damages is a “lottery win” for the plaintiff? Do you know the kind of horrific injury it takes for a judgment of that size? Have you ever met a med mal victim who wouldn’t rather have their health?

We all pay for our mistakes. If I pull out in front of someone and kill them, I not only pay, but I suffer emotional damage from what happened. If an engineer designs a defective building or a builder’s construction is faulty and people die, they suffer emotional damage. We pay for our mistakes. Stop thinking you should be immune.

I realize you think plaintiff’s lawyers are only about the money, though, as if you work for free. Can you really not imagine ever being in a situation where you need someone to represent you? Who would you turn to?