David Randolph Smith

Tort Reform

  • 2/14/06: The Tennessee Medical Association and State Volunteer Mutual Insurance Company kicked off a "medical liability reform" campaign on Valentine's Day, February 14, 2006. The TMA has opened a website, mlrnow.org that discloses who is behind this campaign:TMA Medical Liability Reform Campaign - 2006
  • "The Tennessee Medical Association and State Volunteer Mutual Insurance Company have partnered in a targeted education program to increase awareness regarding the need for medical liability reform (MLR) in our state. Our campaign has conducted research to determine how Tennessee consumers gauge the issue of MLR, plus developed communication tools for physicians and their offices, an awareness program for patients and conducted issue briefings with news reporters and editors across the state."
  • The campaign is a fraud.The Congressional Budget Office found that malpractice costs account for less than 2 percent of total health care spending in the United States and that the "evidence" cited by medmal tort reform advocates is "weak or inconclusive":
      • "Evidence from the states indicates that premiums for malpractice insurance are lower when tort liability is restricted than they would be otherwise. But even large savings in premiums can have only a small direct impact on
        health care spending—private or governmental—because
        malpractice costs account for less than 2 percent of that
        spending. Advocates or opponents cite other possible effects of limiting tort liability, such as reducing the extent
        to which physicians practice “defensive medicine” by conducting excessive procedures; preventing widespread
        problems of access to health care; or conversely, increasing
        medical injuries. However, evidence for those other
        effects is weak or inconclusive."
    • For the TRUTH go to thetruthabouttortreform.org and here.
    • So who is pushing "MLR" (mindless lying rascality?). According to the TMA 41 "organizations" have committed to support and work for passage of MLR in Tennessee. Let's see:
      • TN Medical Assn.,
        TN Medical Assn. Alliance,
        TN Medical Group Management Assn.,
        State Volunteer Mutual Insurance Co.,
        Blue Cross/Blue Shield of TN,
        Community Health Systems,
        Children's Hospital Alliance of TN,
        Freestanding Ambulatory Surgical Centers of TN,
        Hospital Corp. of America/Tri-Star Health System,
        Hospital Alliance of TN,
        Johnson City Medical Center,
        Methodist Healthcare - Memphis,
        Mountain States Health Alliance,
        National Healthcare Corp.,
        National Federation of Independent Business,
        Novartis Pharmaceuticals, Pfizer, Inc.,
        Rural Health Assn. of TN,
        Senior Citizens Services, Inc.,
        TN Academy of Family Physicians,
        TN Academy of Ophthalmology,
        TN Academy of Physician Assistants,
        TN Assn. of Homes and Services for the Aging,
        TN Assn. of Mental Health Organizations,
        TN Chapter of the American Academy of Pediatrics,
        TN Chapter of the American College of Surgeons,
        TN College of Emergency Physicians,
        TN Dental Assn. ,
        TN Dental Hygienists' Assn. ,
        TN Group Practice Coalition for Advocacy,
        TN Health Care Assn. ,
        TN Hospital Assn. ,
        TN Orthopedic Assn. ,
        TN Osteopathic Medical Assn. ,
        TN Pharmacists Assn. ,
        TN Podiatric Medical Assn. ,
        TN Psychiatric Assn. ,
        TN Section - American College of Obstetricians and Gynecologists,
        TN Society of Anesthesiologists,
        TN Society of Oral and Maxillofacial Surgeons,
        Wyeth Pharmaceuticals.
    • Funny thing: no consumer groups, no labor unions, no employee associations, -- just corporations, trade associations and drug companies.
    • But who are the people who have paid money into to the "MLR" campaign? Hold your breath-- they're ALL doctors (except for Ms. Joanna Elzen, the CEO MetroCare, and independent physician association in Memphis). Here they are:
      • Adele Ackell, MD
        John Adams, MD
        Robert Adams, MD
        Milton Addington, MD
        Maysoon Ali, MD
        Subhi Ali, MD
        Newton Allen, MD
        Ray Allen, MD
        Rex Amonette, MD
        Allen Anderson, MD
        James Anderson, MD
        Claudia Andrews, MD
        Mohammed Bah, MD
        Allan Bailey, MD
        Charles Ball, MD
        Michael Baron, MD
        Jack Bechtel, MD
        Neal Beckford, MD
        Eric Berg, MD
        Vedavyasa Biliyar, MD
        Ben Birdwell, MD
        David Birdwell, MD
        William Black, MD
        James Boerner, MD
        Marion Bolin, MD
        James Bolton, MD
        William Bourland, MD
        David Bowers, MD
        Robert Bowers, MD
        Mark Bowles, MD
        Charles Bozeman, MD
        C. Travis Brannon, MD
        H. Victor Braren, MD
        Carol Broadway, MD
        Maury Bronstein MD
        Carey Browder MD
        Edward Brown, MD
        Jeffrey Brown, MD
        John Brown, MD
        Patrick Burkhart, MD
        Lawrence Bushkell, MD
        Darel Butler, MD
        Martha Butterfield, MD
        Jackson Butterworth, MD
        James Callaway, MD
        Thomas Callihan, MD
        Robert Cameron, MD
        Stuart Caplan, MD
        Edward Capparelli, MD
        James Carter, MD
        Edward Cattau, MD
        Lloyd Caylor, MD
        Donald Chamberlain, MD
        Cathy Chapman, MD
        Stuart Chasan, MD
        Amit Choksi, MD
        Peter Claussen, MD
        Rufus Clifford, MD
        Kim Cline, MD
        Richard Cline, MD
        Michael Coffey, MD
        Thomas Conway, MD
        Donald Correll, MD
        David Cozart, MD
        Walter Crawford, MD
        Crista Crisler, MD
        Dale Cunningham, MD
        Dean Currie, MD
        Samuel Currin, MD
        Thomas Curtis, MD
        Marco Da Silva, MD
        Randal Dabbs, MD
        Patricia Davis, MD
        T. Wade Denney, MD
        William DeSouza, MD
        J. Patrick Dilworth, MD
        Robert Dimick, MD
        Lee Dittrich, MD
        Susan Dodd, MD
        John Duckworth, MD
        Karen Duffy, MD
        Marion Dugdale, MD
        Raphael Duncan, MD
        William Dutton, MD
        Hamel Eason, MD
        John Eason, MD
        Charles Eckstein, MD
        George Edwards, MD
        Richard Ellis, MD
        Jonna Elzen
        Starling Evins, MD
        Thomas Farrar, MD
        Martin Fiala, MD
        Steven Flatt, MD
        Chris Fleming, MD
        George Flinn, MD
        Robert Flohr, MD
        Darryl Fontaine, MD
        Hugh Francis, MD
        Liane Freels, MD
        David Freemon, MD
        Augustus Frye, MD
        Thomas Fulbright, MD
        Charles Fulk, MD
        Robert Funke, MD
        Ted Galyon, MD
        Carl Gardner, MD
        David Garriott, MD
        Janice Garrison, MD
        Evelyn Gayden, MD
        David Gerkin, MD
        Deborah German, MD
        Mary Gingrass, MD
        Deborah Goldsmith, MD
        Jerry Gooch, MD
        Paul Googe, MD
        Charles Graves, MD
        Michael Greer, MD
        Daniel Griffin, MD
        Robert Griffith, MD
        William Grigsby, MD
        W. Robert Gronewald, MD
        Kathleen Groom, MD
        Eric Guerra, MD
        Paul Gurecki, MD
        John Hale, MD
        Charles Handorf, MD
        Matthew Hanggi, MD
        James Hayes, MD
        George Hazlehurst, MD
        George Heard, MD
        Norman Henderson, MD
        Robert Herring, MD
        Bruce Herron, MD
        Robert Hill, MD
        Donna Hobgood, MD
        Thomas Holcomb, MD
        Stanley Hopp, MD
        Hugh Houston, MD
        Charles Huddleston, MD
        Alton Hunter, MD
        Nat Hyder, MD
        John Ingram, MD
        S. Craig Jarvis, MD
        Frank Jayakody, MD
        D. Marshall Jemison, MD
        James Johnson, MD
        Ronald Johnson, MD
        Samuel Johnson, MD
        Clark Julius, MD
        Michael Kaminski, MD
        Elizabeth Kasper
        Timothy Kemp, MD
        Haresh Khatri, MD
        Roy King, MD
        William Knight, MD
        Melvin Kraus, MD
        John Kruse, MD
        Kent Kyger, MD
        David Laird, MD
        Tiffany Landon, MD
        Richard Lane, MD
        Stephen Lazarus, MD
        Russell Leftwich, MD
        Jesus Lemus Parada, MD
        Charles Leonard, MD
        Frank Louthan, MD
        O. Raymond Lowry, MD
        William Loy, MD
        Michael Maggart, MD
        H. Lynn Massingale, MD
        Mack Mathews, MD
        Byron May, MD
        Michael McAdoo, MD
        Mary McCalla, MD
        Robert McClure, MD
        Edwin McElroy, MD
        David McKee, MD
        James McKinney, MD
        William McKissick, MD
        John McMurray, MD
        Paul McNabb, MD
        Gary Meredith, MD
        Anthony Meyers, MD
        Andrew Miller, MD
        Phyllis Miller, MD
        F. Michael Minch, MD
        Fredric Mishkin, MD
        John Moore, MD
        Manoel Moraes, MD
        Lee Morisy, MD
        John Morris, MD
        Jennifer Morrow, MD
        Frederick Muths, MD
        John Neblett, MD
        Roger Nelson, MD
        H. Norman Noe, MD
        Patrick O'Brien, MD
        John O'Connell, MD
        L. O'Connor, MD
        Evelyn Ogle, MD
        Mary Overton, MD
        Robert Page, MD
        Autry Parker, MD
        Jaykrishna Patel, MD
        Randall Pearson, MD
        Stuart Polly, MD
        Lewis Preston, MD
        Jeffrey Queen, MD
        Edwin Raines, MD
        B. Manrin Rains, MD
        F. Bronn Rayne, MD
        David Reath, MD
        Srikar Reddy, MD
        Emily Reeves, MD
        William Riggs, MD
        Wiley Robinson, MD
        S. Michael Roe, MD
        John Rosdeutscher, MD
        Barrett Rosen, MD
        Councill Rudolph, MD
        B. Winfred Ruffner, MD
        Thomas Russell, MD
        Scott Sadler, MD
        Sunil Sarvaria, MD
        Christopher Sewell, MD
        Richard Sexton, MD
        John Shea, MD
        Asheesh Shipstone, MD
        James Shore, MD
        David Shupp, MD
        Alex Slandzicki, MD
        James Sloan, MD
        Anthony Smith, MD
        George Smith, MD
        Samuel Smith, MD
        Iris Snider, MD
        Brenda Snowman, MD
        Eugene Spiotta, MD
        Cheryl Stanski, MD
        John Stanton, MD
        Janet Stastny, DO
        William Stone, MD
        Paul Stumb, MD
        James Sullivan, MD
        Henry Sullivant, MD
        Orville Swarner, MD
        Donald Sweitzer, MD
        Paul Teschan, MD
        Christopher Thacker, MD
        Thomas Thomas, MD
        Paul Thompson, MD
        Robert Thompson, MD
        Tom Thompson, MD
        Robert Trautman, MD
        James Varner, MD
        Robert Vegors, MD
        David Villarreal, MD
        Julius Von Clef, MD
        Joe Wallace, MD
        John Warner, MD
        Jeffery Warren, MD
        Charles White, MD
        Joseph Wieck, MD
        Charles Wilkens, MD
        Joseph Willoughby, MD
        Jimmy Wolfe, MD
        Charles Womack, MD
        Jesse Woodall, MD
        George Woodbury, MD
        George Wortham, MD
        J. Mack Worthington, MD
        Taylor Wray, MD
        Linda Yates, MD
        George Young, MD
        Robert Young, MD
        William Young, MD
        Roderick Zicklerz, MD
    • This MLR campaign will certainly justify a full voir dire of jury panels.
  • The Battlelines are drawn: Senator Bill Frist's speech at the 2004 Republican National Convention. Listen to excerpt:
  • 4/3/05: Bush's Efforts to Enact Med Mal Reform Stalls: Democrats to Use Filibuster. The Washington Post reports that the Senate will not likely pass President Bush's proposed medical malpractice reforms (modeled after California's $250,000 cap with other "measures) because of the 60 votes necessary under Senate rules to suspend debate. This again highlight's the Republican party's consternation with the filibuster rule (which Tennnessee Senator Frist has threatened to "nuke"). Listen to Senator Robert Byrd's Speech Agains Changing the Filibuster Rule . Read more . . .
  • 3/11/05. A study conducted by law professors at the University of Texas, University of Illinois and Columbia University law schools cast doubt on whether recent "tort reform" in Texas that limited payouts in medical malpractice lawsuits and is similar to what President Bush wants nationally was really needed. The Texas study found little to support tort reform. By virtually any measure -- from number of claims filed to damages paid out -- the data reflect amazing stability in the tort system, according to the peer-reviewed paper that will appear in the May issue of the Journal of Empirical Legal Studies. The study looked at Texas Department of Insurance records dating back to 1988 and found claims that medical costs were soaring because of too many malpractice lawsuits, the supposed reason for the reform, were not true."We find no evidence of the medical malpractice crisis that produced headlines over the last several years and led to legal reform in Texas and other states," said the study, conducted by law professors at the University of Texas, University of Illinois and Columbia University law schools. Only a few states have comprehensive insurance databases like that of Texas, said David Hyman, one of the study authors, but similar studies elsewhere have found nothing to indicate a link between litigation and rising medical costs."Everyone who is collecting data is finding more or less the same thing -- there is no evidence of a tort crisis," he told Reuters.

Senator Frist's Third Effort to Enact Caps and
Limits on Medical Malpractice Fails

On a 49-to-48 vote, Republican leaders fell 11 votes short of the 60 needed to overcome the threat of a filibuster by Democrats and force the Senate to consider their bill to limit pain-and-suffering damages that juries can award in malpractice suits against obstetricians and emergency room doctors.Senator Bill Frist of Tennessee, the majority leader, said his party would not give up on getting malpractice legislation sought by doctors and insurance companies through the Senate this year.

"I've never seen such special-interest legislation," said Senator Patrick J. Leahy, Democrat of Vermont. "Instead of going about doing the people's business, we seem to be going about the political action committees' business, and that's why, of course, nothing is getting done."

A complaint has been filed against Dr. Frist, a heart surgeon, for participating in the debate since his family founded the H.C.A. hospital chain and its subsidiary malpractice insurer, Health Care Indemnity.[See April 7, 2004].

Ethics Complaint Cites Senator Frist's
Work On Medical Malpractice Legislation

The Senate's only doctor, Bill Frist, has been the unabashed point person for the Republican agenda to limit the rights of patients to sue and recover from doctors and drug companies. Now a highly regarded independent watchdog consumer group, The Foundation for Taxpayer and Consumer Rights, (http://www.consumerwatchdog.org) has called for Senator Frist to step aside from this debate and recuse himself because of his ownership (albeit in a blind trust) of at least $10,150,000, and up to $30,350,000 or more, in HCA stock. The foundation puts it plainly: "Senator Frist's current involvement in the medical malpractice debate rises beyond the level of general concern for health issues to specific advocacy for his family's company."

The Foundation for Taxpayer and Consumer Rights is absolutely right. Senator Frist should recuse himself from voting on limits on the rights of patients who have been most seriously injured by medical malpractice.The press release advocating Senator Frist's recusal may he viewed at: http://www.consumerwatchdog.org/healthcare/pr/pr004158.php3  

This is not the first time that Senator Frist's ties to HCA have been questioned as "legal corruption." Charles Lewis, with the Center for Public Integrity also concluded Dr. Frist had a "direct conflict" in urging legislation that would directly benefit HCA. See http://www.commondreams.org/headlines02/1222-04.htm. The Nashville Scene (reporter Willy Stern) did an excelllent investigation into Dr. Frist's blind trust and concluded that the trust was not in fact blind: "What the panel discovered is that Frist's "blind" trust isn't really blind at all, though he hasn't broken any rules.."

The limits Dr. Frist seeks would penalize patients and financially reward Health Corporation of America  (the nation's largest for-profit hospital) and HCI (Health Care Indemnity, the nation's sixth largest medical malpractice insurer). Founded and controlled by the Frist family, these companies (and the Frist family, including Senator Frist, whose holdings in the company are in a blind trust)  would profit from enactment of such legislation. Senator Frist's actions are as good as his words: "an appalling act of profiteering."Senator Frist, it will be remembered, recently took to the Senate floor to attack the ethics of Richard Clarke for, among other things, "an appalling act of profiteering" for publishing his book, Against All Enemies. Of course Senator Frist blithely (or blindly?) omitted that he himself had published a book on terrorism: When Every Moment Counts: What You Need to Know about Bioterrorism from the Senate's Only Doctor (March 2002) (available on-line in paperback for $10.95).

Senator Bill Frist Loses Unfair Effort to Limit Damages
in Birth Trauma & Gynecological Cases

Thankfully, on Tuesday (Feb. 23, 2004) evening, the U.S. Senate said NO to a Motion to proceed to the consideration of S.2061, the bill that would have restricted the rights of injured mothers and their babies, and handed sweeping liability protections to physicians and others for injuries arising from OB/GYN services.Needing 60 votes to invoke cloture and end a filibuster against proceeding to the bill, proponents were able to muster only 48 votes, falling short of even a bare Senate majority. All Senate Democrats present and voting, except for Robert Byrd of West Virginia, opposed cloture. Democratic Senators Kerry, Edwards, Boxer, Johnson, Corzine and Miller were not present. Three courageous Republicans defied the White House and their Senate leadership and voted to oppose cloture, Lindsey Graham of South Carolina, Richard Shelby of Alabama and Mike Crapo of Idaho. Independent Jim Jeffords also opposed cloture. We should thank all Senators who voted to oppose cloture. Sadly here in Tennessee Dr. Frist and Lamar Alexander staunchly supported this restrictive legislation. You can reach Senate offices through the U.S. Capitol switchboard at 202-225-3121; additional information on how to contact your Senator can be found at http://action.peopleoverprofits.org/legDirectory/

Senator Bill Frist's Unfair Effort to Limit Damages
in Birth Trauma & Gynecological Cases

Tennessee's Senator Bill Frist will bring to the Senate Floor on Monday, Feb. 23, 2003 a Senate bill (S. 2061), which the Republicans have titled the “Healthy Mothers and Healthy Babies Access to Care Act" that seeks to enact a series of tort reform measures at the federal level that would apply only to cases involving birth injuries and mothers (OB-GYN cases). Interestingly, the Republican Senate's official website calls the bill simply, "The Medical Malpractice Billl." Senator Frist has e-mailed Republican supporters urging them to support this bill. President Bush has also endorsed capping damages in medical malpractice cases.

This latest effort at federal tort reform is Dr. Frist's plan to fundamentally change the law in every state for birth injury cases to benefit drug companies, manufacturers, HMOs, docotors and others who are found to be at fault for causing serious birth injuries or deaths by juries. Senator Frist correctly noters that this bill is patterned closely after California's medical malpractice law, MICRA, that has capped damages in California. However, the California experience has hardly been a model of success or fairness as well documented by the Consumer Attorneys of California.

Having previously failed to enact a broader tort reform bill, Senator Frist's latest effort to enact this legislation is an even more profoundly disturbing encroachment into the rights of states and juries to fairly deter malpractice and defective products and provide full and fair compenation to victims. I have represented many families whose lives have been permanently devastated by birth trauma caused by negligence, malpractice, HMO decisions or defective drugs. This bill wrongly discriminates against women and infants by restricting their right to hold physicians, hospitals, insurance companies, HMOs, and even drug and medical device manufacturers accountable for injuries resulting from the provision of obstetrical and gynecological care. Although "conservative" Republicans are generally opposed to federal legislative efforts to limit the laws and authority of states to govern traditional areas of state law, when it comes to insurance companies, HMOs and the AMA, there is no lack of zeal by the Republican Senate leadership to vote for immunizing liability. Although Senator Frist says the bill is necessary to increase access to women’s health care, nowhere does the bill make liability insurance for doctors more available or affordable. And nowhere does it provide access to health care for women who are uninsured. What this proposal does do is greatly limit the ability of women and children with the most devastating injuries to hold the wrongdoer accountable. The bill includes the following provisions:

  • Caps Non-economic damages at $250,000.00. The bill limits non-economic damages to $250,000 in the aggregate, regardless of the number of parties against whom an action is brought. This cap is more restrictive than any state cap. Non-economic damages compensate patients for very real injuries–such as the loss of fertility, pain and permanent and severe disfigurement. They also compensate for the loss of a child or a spouse. These are real damages, and juries are able to calculate them fairly. Infants who sustain life-long injuries during childbirth or women who lose their fertility due to a defective drug taken during the course of pregnancy do not have lost wages or salary. Their injuries may be almost completely non-economic and this bill would have a severe impact.
  • Periodic payments of all future damages. Allowing all future damages over $50,000 to be paid periodically punishes meritorious plaintiffs who were injured by malpractice and unsafe products and leaves them vulnerable and undercompensated. Meanwhile, large insurance companies reap the interest benefits of a plaintiff's jury award.
  • Helps Insurance Companies and HMOs. The bill is not limited to just medical malpractice, but also product liability and insurance claim cases relating to the provision of obstetrical care. The bill applies to medical malpractice, medical products, and health insurance claims. If Senator Frist was truly concerned about an insurance crisis facing doctors, why does his bill sweep in even product liability claims against pharmaceutical and medical device manufacturers, and bad faith claims against insurers and HMOs?
  • Immunity from punitive damages in product liability cases used in connection with the provision of obstetrical or gynecological services. The bill completely immunizes manufacturers of FDA-approved drugs and devices used in connection with the provision of obstetrical or gynecological services from punitive damages. The bill also extends this immunity to the manufacturers of drugs and devices that are not FDA-approved, yet are "generally recognized as safe and effective." Finally, the bill immunizes the manufacturer or seller of drugs from punitive damages for packaging or labeling defects unless the trier of fact determines by the heightened standard of “clear and convincing evidence” that the product was not manufactured in substantial compliance with FDA regulations. These broad-based immunities completely undermine patient safety by eliminating the deterrent effect of punitive damages and have no relation to issues regarding medical malpractice.
  • Blanket Insulation of Liability beyond OB-GYNs. The bill apllies not just to Ob/Gyns, but any physician, nurse or health care professional providing “services for pre-natal or labor and delivery, including the immediate postpartum period.” The definition of protected services is so broad it would protect any professional attending a pregnant mother, and even protect a pediatrician attending a baby during the postpartum period. For example, the bill would limit the recovery of a woman who is injured by an anesthesiologist during the course of childbirth, but would preserve state tort law if that same anesthesiologist injured the same woman during heart surgery. The limits on recovery could even apply to a women who is injured as a result of a negligently performed hysterectomy immediately following child birth, but it would not apply to a hysterectomy performed at any other time.
  • Restricts Attorneys Fees. The bill specifies that contingent fees, regardless of the number of plaintiffs, may not exceed: (1) 40% of the first $50,000 recovered; (2) 33?% of the next $50,000 recovered; (3) 25% of the next $500,000 recovered; and (4) 15% of any recovery in excess of $600,000.
  • Reduced statute of limitations. The legislation unfairly reduces the amount of time that an injured woman has to file a lawsuit. Under the bill, a suit would have to be filed no later than one year from the date the injury was discovered or should have been discovered, but not later than three years after the “manifestation” of injury. This statute of limitations is much more restrictive than a majority of state laws and would arbitrarily cut off meritorious claims involving diseases with long incubation periods. Thus, a pregnant women who contracted HIV through a transfusion but only learned of the disease five plus years after the transfusion would be barred from filing a claim. In addition, the bill limits the rights of injured newborns by requiring that actions on their behalf be brought within 3 years from the date of the manifestation of injury. This is in direct contradiction to the laws of many states, which preserve the rights of minors to seek legal redress upon the age of majority.
  • Eliminates Joint & Several Liability. Under joint liability, injured mothers and their babies are compensated fully for their loss. Joint liability enables an individual to bring one lawsuit against the entities responsible for practicing unsafe medicine or manufacturing a dangerous, defective product and have the defendants apportion fault among themselves, if the jury finds for the plaintiff.
  • Medical products and medical provider suits must be brought separately. S. 2061 requires that health care providers not be named as defendants in the same cases as pharmaceutical or medical device manufacturers. Further, health care providers may not be held responsible for an injury to a pregnant mothers in a class action against pharmaceutical or medical device manufacturers. These requirements do not mean that the provider was not negligent. Instead of having all parties present and allowing the jury to evaluate the evidence, this provision will allow the defendant to blame another defendant who is not a party to the case. The result will be finger pointing by wrongdoers while injured mothers and their babies remain uncompensated.
  • Restrictions on Expert Witnesses. Under this bill, a nurse present at the delivery could not testify that even the most flagrantly negligent obstetrician violated the standard of care nor could a pediatric neurologist testify against an obstetrician about injuries sustained by an infant during birth due to negligence.
  • Discriminates Against Women. The bill effectively discrimates against women by placing a different value on injuries suffered by a pregnant women injured by medical negligence. Men’s injuries are given full value. For example, if a woman is prescribed blood pressure medication during pregnancy that causes blood clots, her recovery is limited under the bill’s provisions. If a man is prescribed the same defective blood pressure medication by his internist, he may recover against the drug manufacturer in accordance with available state law remedies.
  • Collateral source rule. The bill requires that any damages recovered by an injured woman or her baby be reduced by the amount of any collateral source benefits. Suppose, for example, a baby is injured by her doctor and needs complicated surgery and rehabilitation to correct the problem. If the cost for the medical treatment paid is by the health insurer for that treatment is more than the damages recovered–a likely possibility under a bill that severely restrict non-economic damages–the injured patient may recover nothing. This provision deters those patients with the most serious injuries from holding the wrongdoers accountable.
  • Severe restrictions on punitive damages. The bill provides that punitive damages may only be awarded if the plaintiff proves by a “clear and convincing” evidence that (1) the defendant acted with malicious intent to injure the plaintiff or (2) the defendant understood the plaintiff was substantially certain to suffer unnecessary injury, yet deliberately failed to avoid such injury. The bill does not create punitive damages in those states that don’t recognize them. The bill further limits punitive damages to two times the amount of economic damages or $250,000, whichever is greater. Finally, because the bill prohibits punitive damages unless compensatory damages are awarded, the bill would eliminate any monetary recovery for women and infants under Alabama’s wrongful death statute, which specifies that only punitive damages are available in wrongful death cases.
  • Heightened pleading standards for punitive damages. Punitive damages may not be sought by the plaintiff initially. At the court’s discretion, a plaintiff may be allowed to file an amended pleading for punitive damages only after a finding by that court that there is a substantial probability that the plaintiff will prevail. After suffering horrendous injury and going through the expense and trauma of litigation, this provision would force a mother to undergo a second ordeal.
  • Preemption of state law. The bill includes a sweeping preemption of state law. This preemption is designed to override state laws that protect consumers and patients while keeping in place state laws that favor doctors, hospitals, insurance companies, HMOs, pharmaceutical and medical device manufacturers, and other health care defendants. Specifically, the bill preempts all areas of state law covered by the bill, including state rules regarding joint and several liability, the availability of damages, collateral sources, attorneys’ fees, and periodic payments. The bill does not preempt any state defenses designed to protect health care providers. The bill would leave in place existing state damage caps on economic, non-economic, or punitive damages, but would impose the caps in the bill on states that do not have limitations on damages, including states whose limitations were struck down as unconstitutional by state supreme courts.