Recently a person who I don’t know (I will call him Bill) emailed me this link to a 2003 Newsweek article called “Lawsuit Hell”. Essentially the article recounts many instances of lawsuits and how they’ve changed people’s behavior. The site that linked to this article had this sentence, which I missed the first time I saw it: [Yurica Report Editor's Note: This article has been refuted by Anthony J. Sebok and by Joanne Doroshow. In order to understand why it is wrong we strongly urge our readers to read the opposition articles.]
Bill asked for my opinion about it, I told him it was biased. He asked me, “IYHO, has the legal and cultural climate in many institutions in America gone the way the article says it has – in large part out of fear of such lawsuits?”
Here is my response. If you decide to read the Newsweek article, please also read the comments of Sebok and Doroshow.
I can only speak to health care and what it is trying to do to make the environment safer. There is a tremendous emphasis on quality improvement, improving communications, and having the healthcare team truly work together as a team. I envision the healthcare environment having a large safety net under it to catch errors. Unfortunately the safety net will never have a mesh so fine that errors will not slide through.
The whole tone of this article is to heap hatred on plaintiff attorneys. That is the bias I reacted to. Without plaintiff attorneys holding companies accountable for following safe practices, your life would be at risk every time a company had to make a decision about profits over safety. Plaintiff attorneys have brought attention to defective products, procedures, and situations. If you live in a garage with a door opener that stops if it encounters an obstruction, it was designed that way because a child was crushed under a door that did not have the sensor. The equipment manufacturers were forced to change as a result of that child’s death.
Health care has been forced to change as well. In my opinion, there are not enough lawsuits that include in their terms that the organization must make changes as part of the settlement or verdict, but some agencies change on their own after they realize how the patient got harmed within their system. Others keep repeating the same mistakes. Because hospitals usually do not talk to each other about the errors occurring with their walls, the same mistakes are repeated in the building down the road. The government has stepped in and required mandatory reporting of certain types of errors, and has refused to pay for medical care associated with certain types of errors. Private payors have followed along. If your loved one gets an advanced pressure sore in a hospital today, it is very likely the hospital will not get paid for that care, for example. These are called Never Events.
It is easy for a journalist to assemble this kind of inflammatory article from fragments of stories, written in 2003, and pose a picture of a country filled with frivolous lawsuits. The realities today are very different. The plaintiff attorney has to fund the lawsuit. Few plaintiffs have $50,000 to pursue a medical malpractice claim. Attorneys are therefore very selective about the cases they take. It is easy to make fun of the defensive tactics some companies or organizations have taken to avoid being sued, but the realities are that there are a large number of companies that have taken short cuts and then gotten caught.
The insurance industry has undertaken vigorous public relations efforts to discourage frivolous lawsuits. Ads on buses, articles, education, propaganda – called different things depending on your bias have impacted people. many jurors have responded with smaller or no verdicts on cases that they hear. We have swung so far the other way that I see cases that clearly should have resulted in the plaintiff getting compensation for the medical error that harmed her, and yet callous jurors disagreed.
The Newsweek article tries to simplify a complex subject and does not reflect 2012 realities. Thank you for asking and making me think about why the article irritated me so much.
Patricia Iyer is president of Avoid Medical Errors. She has assisted medical malpractice attorneys since 1987.