While we at Lawsuit Financial believe, strongly, that Michigan has had more than enough tort reform, House Republicans are considering yet another round of Medical Malpractice reform. If passed in its present form, this unjust legislation would virtually eliminate a patient's or a patient's family's ability recover damages from a negligent doctor. An alleged "physician shortage" is one reason that sponsors of the Draconian legislation provide in support, however, even most doctors (including the American Medical Association) agree that there is no such shortage. A 1995 AMA study found that Michigan has just the right number of physicians to serve those in the population that need health care. As more physicians age and retire while the population ages and needs healthcare, the need for physicians will grow, but sources indicate that the increased need will be "modest".
This proposed legislation will give bad doctors a free pass to commit malpractice. One provision, for example, would exempt a physician from being sued successfully as long as he/she "acts with a reasonable and good faith belief" that he/she acted in the best interests of the patient. Tell that to a patient who had the wrong limb amputated by a 'well-intended', drunk or incompetent, doctor.
Michigan has already gone through serious liability reform. Since the 1990's (when Michigan’s previous major tort reforms were enacted in response to a fabricated "lawsuit crisis") the number of medical malpractice lawsuits have dropped dramatically. Since 2004, there have been less than 500 cases pursued, annually, in Michigan.
Recently, a Michigan colleague of mine, John Perrin, wrote a letter to his State Representative, Kurt Hiese, Republican, District 20, representing the city of Plymouth, MI (about 30 miles west of Detroit). In this letter, he shares a powerful, true story about a case he defended in which a six month old girl received horrifically substandard care. Consequentially, the child suffers from cerebral palsy; this child would be unable to pursue a successful malpractice case under the proposed new law. John is a fine lawyer; he has represented doctors and insurance companies for a large part of his career; since 2004, he has represented injured citizens against wrongdoers, including negligent doctors and hospitals. After you read the letter, whether you are a legislator, an attorney, a doctor, a hospital administrator, a businessman, a judge, or an ordinary citizen, decide for yourself whether this proposed legislation is supportable in a civilized society of fair laws. With John's permission, I present the entire text of his open letter to Representative Heise:
Dear Mr. Heise,
I am writing to express my concern regarding certain bills presently being discussed in the House Insurance Committee. These bills are an attempt to expand current medical malpractice tort reform in Michigan.
From 1990 until 2004, I defended medical malpractice actions on behalf of healthcare providers and facilities. In that time frame, I tried many cases. I never lost a case that I should have won and never won a case that I should have lost. Contrary to public lore, juries actually do make sound decisions. When juries fail, our Court of Appeals is equipped with the authority to remedy those problems.
I primarily defended Obstetricians,Gynecologists and Pediatricians. I was the trial attorney in the landmark case, Craig v Oakwood Hospital, where the Supreme Court established standards for the admission of scientific evidence. I was also defense counsel on many other notable legal rulings in our appellate courts which benefited the healthcare industry.
Now, let me share this with you a true story. One of the last cases that I tried involved a 6 month old girl who was seen in a hospital ER in the Detroit area. Her mother had been to several emergency rooms in the prior days with the same complaints; "my daughter is gasping for air". For her fourth and final trip to the emergency room, she was seen at my client's hospital. The girl's mother again explained that her daughter was gasping for air and more recently, had episodes where she would stop breathing.
The little girl was seen by a foreign born and trained physician who was dishonorably discharged from the US Army as a doctor for providing substandard care. Thereafter he attempted to pass but failed his pediatric board certification exam six (6) times. The total time passage from her examination until she was discharged from the Emergency Department was seven (7) minutes. This doctor prescribed cough medicine without taking a complete history or even performing a medical exam.
Less than 24 hours later, while riding in her car seat in the back of her mother's vehicle, the little girl stopped breathing and then arrested. A passing EMS vehicle came to the mother's aid and resuscitated the girl, but she had already suffered extensive brain damage. As it turns out, she had a very serious childhood respiratory virus that could have been treated but she required hospitalization.
The care she received was substandard. Consequently, that child suffered from cerebral palsy and severe cognitive impairments. She would require extensive care over the course of her long life.
Under HB 5670 (the proposed legislation-MMB), that case could have been dismissed if I had obtained an affidavit from the doctor stating that he had a subjective good faith belief that he was acting in that little girl's best interest. If I had succeeded, the cost of that little girl's care would forever fall on the taxpayer.
That little girl would then require Medicaid and/or Medicare funding for decades. The public school system would be required to provide her with physical therapy, speech therapy, occupational therapy and other services until she turned 26 years of age. Thereafter, she would be institutionalized in a nursing home paid for by Medicare until she died at 50 to 70 years of age.
What these bills collectively do is shift the cost of truly negligent medical care from the responsible party, or their insurance company, and onto the taxpaying public. I believe in a society that cares for the elderly and impaired, but this is just ridiculous.
Judges already have the tools to deal with frivolous lawsuits and excessive jury verdicts. Jurors are already very skeptical of most personal injury lawsuits and in reality, jury verdicts rarely reflect the amounts that are paid in settlements reached while appeals are pending. In the case that I described above, a settlement was reached at a fraction of what the jury awarded.
Aside from the cost shifting, HB 5670 would make Michigan a safe haven for doctors like the one I described above. This is just one example; I've seen dozens.
Our current tort reform system is not broken. There are far fewer medical malpractice cases being filed and very few frivolous cases. When settlements are reached with Plaintiff's who received Medicaid and Medicare assistance, these institutions have liens and are guaranteed repayment. The Centers for Medicaid/Medicare Services does not independently pursue negligent healthcare providers for reimbursement on its own.
The fact of the matter is that Michigan has a sound and efficient legal system now that benefits everyone equally.
John M. Perrin P.C.
The Perrin Law Firm
I remind my readers; this is a case that John defended. Defense attorneys always do their jobs and zealously represent their clients, but justice is far more important to them than it is to their clients and their clients' insurance companies. The latter constituencies don't care who they screw as long as they get to keep their (or save) money. And this is what this proposed legislation is about; it is another bailout for Goliath corporations and negligent professionals at the expense of the taxpayers. "Tort reform" has been sought by these wrongdoers for almost 30 years. Bad law, state by state, has been passed, virtually unchallenged by an uninformed citizenry. Only when someone suffers serious injury without ability to pursue the wrongdoer does he/she cry out "injustice".
If you are a Michigan citizen, call, email or write your state representative and state senator. Protest on the steps of the Capital. Tell them if they want to earn your vote, they will vote against this unjust, unfair, legislation. Tell Governor Rick Snyder, if it passes, to veto it, as soon as it reaches his desk. It is high time for the average American, even those not effected by these unjust laws, to stand up and say: "Injustice! Enough is enough!"
Mark M. Bello is the owner and founder of Lawsuit Financial Corporation where he is instrumental in providing cash flow solutions and consulting when necessity of life lawsuit funding is needed during litigation. Mr. Bello has thirty-four years experience as a trial lawyer and 13 years as an underwriter and situational analyst in the litigation funding industry. He is recognized as an expert in this field by ExpertPages.com and ALM Experts. Mr. Bello is a sustaining and Justice PAC member of the Michigan Trial Lawyers Association, Justice Pac member of the American Association for Justice, Member of the American and Michigan Bar Associations, Member of Public Justice and Public Citizen, Member of InjuryBoard, out-of-state member of the Mississippi Association for Justice and a business associate of the Florida Justice Association, Texas Trial Lawyers Association and the Consumer Attorneys of California. His articles have appeared in FindLaw, The West Reporter, The Safety Report, Plaintiff Magazine, Advocate Magazine, Lawyersandsettlements.com, and other fine legal publications.
