84% Of Anesthesiologists Involved In Surgical Catastrophes

According to results from a survey published in the March issue of Anesthesia & Analgesia, the official journal of the International Anesthesia Research Society (IARS), over 80% of anesthesiologists have been involved in a fatal or serious incident to a patient during a surgical procedure.

New research indicates that these catastrophic events can have considerable and lasting effects on anesthesiologists and other professionals, who could benefit from time and support in order to recover from the incident.

Dr. Farnaz M. Gazoni of the University of Virginia Health System, Charlotte, who led the study, explained:

“These emotional and potentially cognitive effects can have repercussions not only for the physician involved but also, conceivably, for patients subsequently cared for.”

To a nationwide sample of anesthesiologists, the team sent a survey about surgical catastrophes – events resulting in death or injury of a patient. The researchers found that 84% of the 659 respondents have been involved in a surgical catastrophe. Over an entire career this works out as an average of 4.4 incidents.

Over 70% of respondents said they experienced:

• Guilt
• Reliving of the event
• anxiety
• and the majority reported that they felt personally responsible for the injury or death of the patient, even if they believed the event was unpreventable

The researchers found that 12% of respondents considered changing careers after the catastrophic event, 20% reported that they never fully recovered, and almost 90% said it took quite a long time to recover emotionally.

Only 7% of anesthesiologists were given time of work after the catastrophic event, while the majority had to continue with their work. Two-thirds of respondents reported that the believed their ability to care for patients was compromised in the hours following the incident. In addition, the majority reported that it would have been helpful after the incident to receive some sort of formal debriefing.

Prior studies have demonstrated that the injury or death of a patient is major source of stress for doctors, however, this study is the first to focus on surgical catastrophes involving anesthesiologist in the United States.

Dr. Gazoni and colleagues conclude:

“A perioperative catastrophe may have a profound and lasting emotional impact on the anesthesiologist involved and may affect his and her ability to provide patient care in the aftermath of such events.”

A report by Drs. Timothy W. Martin of University of Arkansas for Medical Sciences, Little Rock, and Raymond C. Roy of Wake Forest University School of Medicine, Winston-Salem, N.C., reveals that surgical catastrophes may have additional victims as well.

As demonstrated in the study, these catastrophic events can make anesthesiologists the “second victim” of the event as a result of the lasting emotional impact it has on them. Furthermore, subsequent patients could become the “third victims” as many anesthesiologist are required to continue working – even though they believe their ability to care for patients is compromised.

According to Dr. Martin and Dr. Roy, the study indicates some “new imperatives” in the way health care organizations respond to catastrophic events.

Martin and Roy, feel that after being involved in a surgical catastrophe, anesthesiologists (and other professionals) should probably not be allowed to return to patient care duties immediately following the incident. In addition, they suggest anesthesiologists should be regularly monitored for signs of long-term psychological impairment, and that there should be some type of formal mental health screening following the event.

Written by Grace Rattue
Copyright: Medical News Today

New York State Bar Association/ Continuing Legal Education Presents: ‘Medical Malpractice’ – Register Today.

New York State Bar Association/ Continuing Legal Education Presents: ‘Medical Malpractice’ This Program will be for new and experienced attorneys. This seminar will provide an overview of key issues in Medical Malpractice Litigation through a combination of lectures and practical demonstrations.  Learn how to determine the relevant standard of care, how to prepare your case, how to avoid common pitfalls and how to examine expert witnesses.

Steven E. Pegalis of Pegalis & Erickson LLC. will be a key speaker on ‘Openings and Summations’, Friday -March 2nd at the Melville Marriott, Long Island. 

Register Now:

http://www.nysba.org/AM/Template.cfm?Section=Events1&Template=/Conference/ConferenceDescByRegClass.cfm&ConferenceID=5218

Doctor Misses Cancer, Victim Wins $15M in Malpractice Suit

The woman had a marble-sized lump that a doctor first said was not malignant.

By Greg Cergol

|  Friday, Feb 10, 2012  |  Updated 6:28 PM EST

A Long Island breast cancer victim has been awarded $15 million in a malpractice suit against her doctor after her cancer was initially missed, despite a lump in her breast.

Stephanie Tesoriero, 50, had claimed the doctor misdiagnosed her cancer, costing her precious time in fighting the disease.

“This could have all been avoided,” Tesoriero said.

The mother of three first discovered a marble-sized lump in her breast in 2002.

After reviewing her mammogram, Dr. Paul Fisher of the Carol M. Baldwin Breast Care Center in Stony Brook concluded there was “no evidence of malignancy.”  He ordered no further tests, according to Tesoriero.

The doctor instructed her to return for a normal exam in about a year, Tesoriero said. But the lump didn’t go away.

And when she received more tests 16 months later, Tesoriero said, another doctor found that the lump was as big as a golf ball. He determined it was, in fact, breast cancer.

“Why didn’t they find it the first time?” Tesoriero asked. “Why didn’t they go the extra step and do a sonogram?”

A mastectomy, chemotherapy and radiation treatments all followed and, for a time, the cancer went into remission. That’s when Tesoriero decided to sue her doctor.

The two-week trial ended Wednesday with a jury of six women approving the multimillion-dollar award.

Two calls to Fisher’s lawyer were not returned. He remains on staff at the Baldwin Breast Care Center, but since the center itself was not named in the lawsuit and oversaw Tesoriero’s later treatment, a spokeswoman offered no comment.

“They found him negligent because he was,” said her lawyer Robert Fallarino. “There was something there, something she felt, and it needed to be evaluated and if it had been, we would not be here now.”

“I just wanted him to admit he made a mistake,” Tesoriero said of her doctor. “Doctors do make mistakes.”

Tesoriero’s cancer fight is far from over. The cancer has returned and has spread to her bones.

The prognosis is uncertain, her lawyer said. Tesoriero must now undergo chemotherapy treatments nearly every week for the rest of her life.

“I don’t want to see anybody else go through this,” Tesoriero said.  “It’s a tough fight.”

Tesoriero has spoken out, she said, to sound a warning for other women.

“If you have any suspicions, any doubts,” she said, “speak to the doctor and ask for another test.”

How Complaints From a Single Doctor Caused the Gov’t to Take Down a Public Database

by Marian Wang
ProPublica, Nov. 10, 2011, 12:20 p.m.

An agency within the U.S. Department of Health and Human Services that maintains a discipline and medical-malpractice database reopened it for public access yesterday, two months after the agency had first taken the database offline.

The National Practitioner Data Bank contains information used by hospitals, insurers, and licensing boards to track doctors’ records, check prospective hires, and make other decisions. A publicly available version of the database — which removed confidential identifiers such as doctors’ names and addresses — had long been used by reporters and others interested in patient safety. In the years it was online, journalists could reference the database and, with additional reporting, could at times identify doctors with uniquely long histories of being sued or disciplined for medical malpractice.

Then, two months ago, the government cut off public access — a decision that was sharply criticized by a number of journalism organizations and consumer groups.

What was behind that decision? Apparently, one Kansas doctor with a trail of malpractice suits.

A public records request by Sen. Charles Grassley and the New York Times turned up documents about the decision that shows that the agency closed the database days after the doctor, Robert Tenny, complained to the government. Thanks to the database, he told the Health Resources and Services Administration, or HRSA, he was about to get unwanted attention in his local paper.

We culled through the documents and pulled out some interesting snippets that give a glimpse into the backstory behind why the public database was temporarily shut down and why — even now — the restored database has some new restrictions.

A brief timeline:

Aug. 16 – A local newspaper reporter requested a comment from a neurosurgeon, Robert Tenny, through Tenny’s attorney. The reporter, Alan Bavley of the Kansas City Star, was working on a story about doctors who have went undisciplined despite histories of malpractice allegations. He had used both the public database coupled with publicly available court records to do his reporting.

Reporter requests comment for his story from the doctor and his attorney. (p. 6)

Aug. 24 – The doctor sent a fax to Cynthia Grubbs at HRSA. Tenny asked for help, alarmed that the reporter had identified him and was poised to report on his malpractice settlements. The fax looked like this:

Alarmed doctor asks HRSA to ‘PLEASE HELP!’ after reporter contacts him. (p. 5)

Aug. 26 – The HRSA wrote to the reporter, warning that he could face at least $11,000 in fines for each violation of confidentiality. The doctor was copied on the letter.

HRSA warns reporter of penalties associated with disclosure of confidential information. (p. 2)

Sept. 1 – The agency cut off public access to the database.

Sept. 4 – An article ran on the front page of the Kansas City Star, telling the story of a woman who died in 2007 after undergoing a brain surgery with Dr. Tenny. It noted that Tenny had been sued at least 16 times for medical malpractice but had never been disciplined by the state’s licensing boards. (Update: Worth noting that according to the report, Dr. Tenny settled at least six of the 16 lawsuits; the others were either dismissed or the outcomes either weren’t clear. “In at least one case, the verdict was in Tenny’s favor,” the Star reported.)

On the same day, the doctor wrote to HRSA again, this time with a copy of the article, and he expressed a desire that this “will change the way public data is presented.”

The doctor urges HRSA to “change the way the public data is presented.” (p. 7)

Sept. 5, 7, 11, 14, 15, and 20 – Dr. Tenny wrote five more letters to HRSA, complaining that the newspaper was making “a concerted effort” to end his career and that the article “significantly questioned the security of your data.” He also speculated that the reporter had gotten improper access to information from the full data bank either from a local medical center or from a disgruntled former Data Bank employee.

Sept. 22 – The Kansas City Star wrote a story about how groups were urging that the database be reopened. Dr. Tenny wrote to HRSA again: “Stay strong and keep up the good work!” (The American Medical Association, around this time, also wrote a letter supporting the agency’s decision to remove the file.)

More encouragement from Dr. Tenny. (p. 45)

Sept. 26 – HRSA responded to Dr. Tenny’s six letters, telling him that the publicly accessible database had been removed, and that the agency had contacted hospitals to remind them of confidentiality requirements and sanctions for breaches of confidentiality.

HRSA responds to Dr. Tenny’s letters, telling him that it cut off public access to the data. (p. 50)

Nov. 9 - HRSA restored public access to the database, but as many reports have noted, it comes with a major caveat. According to the website, users of the new database are no longer allowed to combine information gleaned from the public database with any other publicly available information in a way that would identify doctors. Or in other words, the government is now trying to tell the public — including the press — what it’s allowed to do with publicly available information. (The agency told the Kansas City Star that it has a duty “to make certain that information about individual practitioners remains confidential.”)

Sen. Grassley and others have pledged to keep fighting the agency’s interpretation of the law, questioning whether the database is ultimately meant to protect the public or to protect physicians.

“The interpretation of the law ought to be for public benefit,” Grassley said. “A single physician complained that a reporter identified him through shoe leather reporting, not the public data file. One complaint shouldn’t dictate public access to federally collected data for 300 million people.”

We’ve called Dr. Tenny’s office for comment but have not received a response.

Malpractice reform efforts stalled

Malpractice reform efforts stalled By: Brett Norman November 7, 2011 10:29 PM EST

In a bid to win support for health reform from skeptical doctors back in 2009, President Barack Obama pledged action on an item near the top of their wish list — malpractice reform. And he delivered an initial step: $25 million to test alternatives to the medical liability system. That won praise from the American Medical Association, among others. But since then, tort reform on the federal level has been put on ice, a victim of both tight money and bitter politics. Malpractice provisions in the Patient Protection and Affordable Care Act were limited in the first place — $50 million for expanded state demonstration projects. And Congress didn’t fund it. Nor did the administration get the $250 million it requested for fiscal year 2012 for the Department of Justice to explore alternative approaches. Meanwhile, House Republicans are pushing for the kind of reform they’ve backed for many years — a $250,000 federal cap on noneconomic damages and shortening the statute of limitations. But the bill, called the HEALTH Act, has little chance of clearing the Senate, which is controlled by Democrats, who have historically resisted tort reform. The two sides have been arguing for years, with the Democrats accusing Republicans of siding with insurers instead of injured patients, and the Republicans saying Democrats are beholden to trial lawyers. Meanwhile numerous studies have documented ongoing problems with patient safety, as well as significant flaws in the way the legal system currently handles malpractice cases, sometimes dubbed “jackpot justice.” Yet unless the supercommittee acts, it looks like tort reform will be left for now to the states — many of which have already taken some kind of action. The Congressional Budget Office has estimated that tort reform similar to the Republican caps proposal would save $54 billion over 10 years. “It doesn’t look like anything big is going to happen soon,” said Urban Institute scholar Randall Bovbjerg. The $250 million DoJ request to finance alternatives including so-called health courts, safe harbor and “disclose and apologize” models, “could have been a meaningful effort,” he added. The ACA provisions, on the other hand, were worth little to begin with. The proposed $50 million “showed they cared about responding to reform and defensive medicine and such, but the restrictions in the law made it impossible for it to amount to anything,” Bovbjerg said. “It was only ever intended as a political sop,” said Philip Howard, founder and chairman of Common Good, which advocates for expert health courts to settle medical liability claims. Backers of health courts say they would be fairer and more consistent than the current way of handling malpractice cases. What’s left are the relatively limited projects funded in June 2010 with the initial $25 million through the Agency for Healthcare Research and Quality — 13 planning grants of about $300,000 each and seven $3 million, three-year demonstration projects. And even that AHRQ program is on hold. The Department of Health and Human Services solicited applications for a second round of grants but “since Congress hasn’t funded it yet, the applications have not been reviewed,” an HHS official said. Congressional Republicans oppose the demonstration projects in hopes of positioning their tort reform law as a core piece — and a well-defined piece, after so much congressional debate — of their “repeal and replace” strategy for the ACA, staffers say. “The president’s demonstration projects are an attempt to profess interest in malpractice reforms without actually taking action,” Rep. Lamar Smith (R-Texas) wrote in an email to POLITICO. “We don’t need to ‘demonstrate’ that medical malpractice reforms are effective; that has already been proven in the states where these reforms have been enacted.” The caps, already in place in many states including Texas and California, may provide more predictability for doctors and malpractice insurers. But they do nothing to address the underlying system, which is increasingly understood to serve neither patients nor doctors well or fairly. But the political debate over how to address the problem has ossified into a rote partisan exercise, Bovbjerg said. “The lawyers say the system works great,” he said. “The other side says it’s the worst thing since the fall of man from Eden, but if we have a little less of it, it will be fine.” In his book, “Healthcare, Guaranteed,” Ezekiel Emanuel, a bioethicist now at the University of Pennsylvania and a former White House adviser on health policy, laid out the case against the existing malpractice system. “Numerous studies have shown that the majority of patients who suffer a medical error are not compensated, while a select few win outsize awards. And on average, patients must wait nearly five years to resolve claims and receive payments from a malpractice case — six if the case is related to the delivery of a baby.” Among the alternatives being developed in several states or communities include the “disclose and offer” or “disclose and apologize” model. First introduced by the Veterans Administration and adopted by other health systems, including the University of Michigan, it encourages health providers to acknowledge and apologize for medical errors and offer patients compensation. If the patient rejects the offer and opts to sue, any previous admission would be inadmissible in court. Proponents say this model encourages providers to identify mistakes openly — and work on ways to prevent errors or harm from happening to another patient. Health courts, based on previous specialized courts, would provide administrative compensation as ordered by trained judges and medical experts, rather than the usual trial by a lay jury. These have not been tested yet. The safe harbors model would protect providers from liability if they follow established best practice guidelines, although in many cases, those guidelines have not yet been specified or widely agreed on. “There are a lot of ideas that need to be tested as a first step,” said Michelle Mello, a professor of public health at Harvard and a malpractice reform advocate who has applied for funding through AHRQ. The initial round of AHRQ grants provided funding to develop and test some of these models, particularly the disclose and offer variety. The demonstration grants went to university researchers, health systems, a public health department and a court system. And the idea was that some of the 13 planning grants would subsequently get project-level funding. “That was the hope,” said Joy Wilson, health policy director of the National Conference of State Legislatures. “But it’s not easy to fund anything in this environment. It didn’t happen.” Advocates of comprehensive malpractice reform are frustrated by the mismatch between rhetoric and action. And the AMA still wants a nationwide fix. “It will come back around — and sooner rather than later — because fundamentally, you can’t manage health care if you can’t manage health care justice,” Howard said. “But no politician wants to do it.”

The Hypocrisy in Medical Malpractice Debate

Posted by Mike Bryant
Monday, October 24, 2011 9:27 AM EST

There are so many things to look at in the ridiculous claims that are often made by tort reform proponents who call for medical malpractice changes. Two areas that often come up are cost savings and the argument that doctors get sued all the time.

A couple of recent items caught my eye concerning each of these topics:

- There is so much fraud out there in the health care system. Sure there can be cost saving if you simple rewrite the Constitution and take away people’s right to sue. You would still have society having to pay for all of the damage that was left behind. But, shouldn’t we start with the Medicare fraud that is out there?

The Washington Post recently reported that :

Miami health-care executive Larry Duran orchestrated one of the largest Medicare frauds in U.S. history, submitting more than $205 million in phony claims and landing a record-breaking 50-year prison sentence for his crimes.

But another piece of Duran’s scheme also caught the eye of prosecutors. They say he extended his fraud through his lobbying efforts, all aimed at getting official Washington to make it easier for mental health centers such as his to make money.

An advocacy group he helped set up, the National Association for Behavioral Health (NABH), has spent more than $750,000 on lobbying efforts over the past five years, including staging “fly-ins” on Capitol Hill and providing advice to group members on how to get around Medicare denials, according to the Justice Department. The group also held fundraisers for lawmakers such as Sen. Mary Landrieu (D-La.) and former congressman Kendrick B. Meek (D-Fla.), records show.

There is a lot of money out there that is simply being stolen and doesn’t seem to be as important to the tort reformers. There needs to be a crack down on the real problems in the system.

- Poptorts took a look at how doctors aren’t really afraid of the courtroom as long as they are suing. Including a United States Supreme Court case where they are fighting to have the right to bring the suit. As is pointed out:

Imagine not being able to bring a lawsuit in a situation like this, when doctors have clearly been wronged, and when the poor are going to suffer for it, right?

If only the ER docs saw the same value helping poor folks get proper treatment like this as helping some of those same patients who are negligently injured. For example, last November, we wrote about Florida legislation that would give ER doctors who treat Medicaid patients “sovereign immunity,” and cap their liability for committing medical negligence against the poor at $100,000.

I wonder if they really understand the hypocrisy and simply don’t care?

Find this article at:

http://stcloud.injuryboard.com/miscellaneous/the-hypocrisy-in-medical-malpractice-debate.aspx?googleid=294972

Senate committee tables medical malpractice bills – News – Virgin Islands Daily News

 

Senate committee tables medical malpractice bills – News – Virgin Islands Daily News.

ST. CROIX – A Senate committee on Friday voted to table two bills that would amend sections of the V.I. Code pertaining to medical malpractice – although some senators indicated they want to take a more thorough look at updating the entire medical malpractice law.

Doctors in white coats were sprinkled throughout the gallery at the Fritz Lawaetz Legislative Conference Room as members of the Senate Health and Hospitals Committee and a number of testifiers discussed the bills for several hours.

The V.I. Health Department’s attorney gave a mixed opinion on the two pieces of legislation, coming out against one and urging senators to defer a decision on the other until the department receives the results of an actuarial study.

However, Health Department Chief Legal Counsel Carl Richardson also said that he thinks the existing law concerning medical malpractice in the territory needs an overhaul.

“Instead of piecemeal legislation that seeks to disrupt the existing medical malpractice system, the Legislature, in my opinion, needs to take appropriate steps to amend the code to bring it in step with how medical malpractice cases are being currently handled,” Richardson said.

The two pieces of legislation, both sponsored by Sen. Alicia Hansen, that were discussed Friday were:

- A bill that would eliminate the government paying a portion of medical malpractice insurance premiums for hospital-employed physicians who also work part time in private practice. Currently, hospital-employed physicians who also maintain a part-time private practice pay half of the cost of the premiums.

- A bill that would eliminate the requirement for a proposed medical malpractice complaint to be filed with the territory’s Medical Malpractice Action Review Committee before the lawsuit is filed in court.

As it now stands, the Medical Malpractice Action Review Committee is tasked under V.I. Code with arranging for expert review of all malpractice claims before actions based on those claims can begin in court. In practice, the committee itself does an initial review of the complaint and does not seek an expert opinion at that point, Richardson said Friday.

Existing law also allows the plaintiff to file the lawsuit if the committee has not obtained the expert opinion within 90 days.

In addition to eliminating the requirement to file the complaint with the committee first, the bill also would require that the committee reimburse plaintiffs for the reasonable costs of obtaining an expert opinion, if the committee fails to obtain one within 90 days. If the court dismisses the lawsuit, the judge could direct the plaintiff to reimburse the committee for the amount paid for the expert opinion, under the bill.

Representatives from the territory’s hospitals – Schneider Regional Medical Center Chief Executive Officer Alice Taylor and Luis Hospital legal counsel Royette Russell – said that the subsidy for malpractice insurance premiums that the government provides is a valuable recruiting tool for the territory’s hospitals.

“We fear that removing this subsidy will drive doctors to leave the island and practice elsewhere, prompt them to limit the services they offer at the hospital so their premiums cost less or drive them away from the hospital setting altogether,” Taylor said.

She contended that removing the requirement to first file a complaint with the Medical Malpractice Action Review Committee would be a regressive move because the current review system works, gives the committee the chance to make positive changes in health care and gives the government a chance to settle out of court if the claims have merit.

Russell said that Luis Hospital’s position on that bill is that its enactment could “lead to a proliferation of lawsuits and will remove an effective filter against the filing of frivolous lawsuits.”

Dr. Anne Treasure, president of the Virgin Islands Medical Society, contended that changing the malpractice premium assistance provided to hospital-employed physicians would impair the collective bargaining agreement of the Association of Hospital-Employed Physicians and violate federal law.

She also said that the V.I. Medical Society “unanimously and wholeheartedly” disagrees with the bill removing the requirement for first filing a claim with the malpractice review committee.

Treasure contended that the national trend supports the activity of medical review panels before filing lawsuits in court, that all lawsuits – even frivolous ones – leave a stain on a physician’s record and that excessive lawsuits threaten the health of the territory’s coffers.

Attorney Lee Rohn testified that the existing medical malpractice law in the territory has never been implemented – at the expense of local taxpayers and victims of malpractice.

Not adequately compensating people who are seriously injured through medical malpractice costs the government far more in the long run, as the injured person may remain a burden on the public assistance system for years to come, Rohn contended.

There is no reason the government should pay the medical malpractice settlements for doctors practicing below the standard of care, she said, and she asked that the law be changed so that each doctor and medical facility be required to have malpractice insurance of $1 million per occurrence.

Currently, the liability cap in a medical malpractice case in the territory is $250,000.

Richardson said that a consultant currently is conducting an actuarial study that likely will lead to an increase in existing medical malpractice premiums, which have not been changed since 1993.

He urged senators to hold off on the legislation pertaining to premiums until the study is complete and can be discussed.

He argued against the bill pertaining to the malpractice review committee, contending that it would destroy the framework for early settlements in malpractice cases and “only encourage less than professional handling of civil litigation in medical malpractice cases.”

Richardson did, however, advocate for changing the law to agree with the way medical malpractice cases are handled.

Currently, the government is self-insuring health care providers against malpractice claims. Premiums that health care providers pay are deposited into the General Fund, and claims are paid through an appropriation, he said.

V.I. Code, however, requires that the government establishment a Medical Malpractice Risk Management Trust Fund to provide liability coverage and that the fund be managed by a licensed broker or brokerage firm, Richardson said.

“This is not being done,” he said. “There is no Medical Malpractice Risk Management Fund, and there are no licensed brokers or brokerage firms retained to manage the money which is available to defend medical malpractice cases.”

Richardson also described other ways in which the government is not complying with the existing law.

Because of this, Richardson said, several plaintiffs’ attorneys are asking the courts to have the program declared null and void “with the intent of overcoming the caps on liability and reaching beyond the fund into the ‘pockets’ of our health care providers.”

If the system is to remain in its present form – which Richardson contended is functioning adequately – the law needs to change to conform to actual practice, he said.

Richardson was asked to provide senators with proposed changes that would amend the law to meet actual practice.

The committee voted to table both bills indefinitely, with a unanimous vote of all members who were present when the vote was taken.

 

Read more: http://virginislandsdailynews.com/news/senate-committee-tables-medical-malpractice-bills-1.1218573#ixzz1b3Jki28j

Med-mal cap does not pass constitutional muster

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Robert Peck of the Center for Constitutional Litigation responds to James Ho’s op-ed about medical malpractice reform.

September 12, 2011

In “Federalism and medical malpractice reform” [NLJ, Aug. 29], Gibson, Dunn & Crutcher partner James Ho defended H.R. 5, the congressional medical-malpractice damages cap bill against some carefully selected constitutional attacks. Missing from his attempt to justify congressional authority to amend state tort law was any willingness to grapple with fundamental constitutional principles that stand as insuperable obstacles to what H.R. 5 would do.

A federal law capping compensatory damages in state tort actions brought by the most catastrophically injured victims of substandard medical treatment cannot comport with the Seventh Amendment, which guarantees the right to trial by jury. The courts apply a historical test to determine whether constitutional jury-trial rights are infringed. The most recent review of that historical record by the U.S. Supreme Court occurred in a 1998 unanimous opinion written by Justice Clarence Thomas, which found that, under the English common law that predated our Bill of Rights, jurors are “the judges of damages.” The Court then explained that any deviation from that venerable practice, which treats damages as part of the jury’s determination of the facts, fails to satisfy the “substance of the common law right” that the Seventh Amendment enshrined. Feltner v. Columbia Pictures Television Inc., 523 U.S. 340 (1998). It is worth mentioning that the winning advocate behind this argument was a lawyer named John Roberts Jr., now chief justice of the United States.

The Court reiterated the jury’s unimpeachable authority over any determination of noneconomic damages, the type of compensatory damages that H.R. 5 specifically attempts to limit, in Cooper Industries Inc. v. Leatherman Tool Group Inc., 532 U.S. 424 (2001). There, the Court held that punitive damages were no longer a fact to be found by the jury under the Seventh Amendment but instead an expression of the community’s moral outrage at the misconduct and subject to judicial revision in accordance with due-process principles. The Court took pains to contrast the “evolved” status of punitive damages, which were jury-determined facts as long as they compensated for intangible injuries, with noneconomic damages, which remain “a question of historical or predictive fact,” within the exclusive province of the jury. For that reason, numerous state courts have struck damages caps for violating the cognate protection of jury rights found in their state constitution.

Mr. Ho also picked a single federal constitutional argument among many made in the course of still-pending Texas litigation to deride — that the Texas cap constitutes a taking, a position that former Justice Sandra Day O’Connor has suggested is correct.

A cap reduces compensation for proven invasions of bodily integrity supposedly to promote the public availability and affordability of health care. When full compensation for surgically removing the wrong ovary is denied through a cap, as in a case now pending before the Kansas Supreme Court, it becomes the obligation of the state to make up the difference between the jury’s verdict and the limitation. The argument thus has far more traction than Mr. Ho concedes.

CONFUSING CLIENTS WITH LAWYERS

In addition, Mr. Ho’s assertion that one of my law firm’s clients, the American Association for Justice (AAJ), ought to be consistent in its opposition to H.R. 5 with the arguments we make in court, fails to appreciate the difference between clients and their lawyers. AAJ does nothing hypocritical in emphasizing the fact that the federal government has no authority to amend state tort law, even as I argue in court that state constitutions generally prohibit such caps. After all, in the seminal case of Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), the Court made plain that “Congress has no power to declare substantive rules of common law applicable in a state,” even if the subject is “commercial law or a part of the law of torts.” That Congress could have the authority to alter state law directly was specifically considered and rejected by the framers of the Constitution. Plainly, H.R. 5′s proposed damage cap is unconstitutional any way one looks at it.

My firm, the Center for Constitutional Litigation (CCL), which does no lobbying, need not limit its in-court legal arguments to those made by AAJ, a client, in a different venue, even though our interests in assuring full and fair remedies to those injured through the fault of others coincide. And AAJ need not limit its arguments in Congress against H.R. 5 to those CCL makes in court. If that were so, members of Mr. Ho’s firm could be accused of being “funded” and limited to the arguments of its clients. In two of the most recent cases in which CCL and Gibson Dunn were opposing counsel, Gibson Dunn represented Philip Morris and a collection of tort reform groups (in neither case was CCL representing AAJ). Yet to suggest that those clients limit their arguments in lobbying forums to those that Gibson Dunn has used on similar issues in court is to deny the independence of the bar — and the separate existence of the client. Requiring such unity of voice of lawyers and clients regardless of the forum is the veritable bridge too far.

Robert S. Peck
Washington
The writer is president of the Center for Constitutional Litigation.

Doctors with histories of alleged malpractice often go undisciplined – KansasCity.com

Doctors with histories of alleged malpractice often go undisciplined – KansasCity.com.