D.C. Personal Injury Lawyer & Attorney : Gabriel Assaad : Assaad Law, PLLC: D.C. Injury Law Journal

This week Congress reconvenes in Washington, D.C. and health care reform will be front and center. This a serious concern that medical malpractice reform will be used as a bargaining chip by the Democrats and the Obama Administration in order to get a Health Care Reform bill passed.  

President Obama will be addressing the nation this evening and is expected to set forth what he wants in a health care bill.   We must keep medical malpractice reform out of the Healthcare Bill. Why? Because....

·         Medical malpractice should not be a bargaining chip. Health care reform is about making sure that every American has access to quality, low-cost health care, not about limiting the legal rights of innocent patients harmed by medical negligence.

·         Taking away patient rights does not improve the quality of our health care system or produce cost savings. Forty-eight states have already enacted medical malpractice reform measures. Yet these legal restrictions have done nothing to improve our health care system, reduce costs, or help people harmed by medical negligence.

·         Medical malpractice is about real people with real injuries. The Institute of Medicine estimates that 98,000 people die each year in the US from preventable medical errors (the 6th leading cause of death in America).

·         Defensive medicine is a myth. Both the GAO and CBO question the prevalence of defensive medicine, and have detailed how tampering with the legal system will save practically no money. Some so-called defensive medicine may be motivated more by profit and less by liability concerns.

One thing is clear - we must ALL be a part of the fight to keep medical malpractice reform out of the health care bill. 

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The House Judiciary Subcommittee on Commercial and Administrative Law today approved a bill which would enable armed service members and their families to hold the military accountable for medical malpractice.  

The current law prevents any such malpractice lawsuits from being filed against the military regardless of the egregiousness of the situation, a basic immuniity for the miltary healthcare providers.  Victims of medical malpractice had no recourse against the military.  

The new bill, the Carmelo Rodriguez Military Medical Accountability Act of 2009 (named after a servicement who died of skin care due to medical negligence), would legislatively reverse the U.S. Supreme Court's 1950 ruling in Feres vs. United States in which the court ruled that military members and their families have no right or ability to sue the military for negligent medical care given to them during their service.

Let's hope this bill gets passed so that the military, who fight for us, have the same rights as us civilians. That they can have access to good healthcare and have recourse for negligent healthcare.

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A doctor in Maryland uses scare tactics to convince citizens that medical malpractice reform is necessary.  In an editorial in the Baltimore Sun, Dr. Hass wrote:

At a time when the nation's economy is slumping and the governor is proposing to mandate that Maryland hospitals and physicians provide more free care to lower-income families, it's ironic that the state House Judiciary Committee, led by trial lawyer Joseph F. Vallario Jr., is proposing legislation to roll back the reforms in the state's medical malpractice insurance policies enacted in 2004 ("Attack of the trial lawyers," editorial, Feb. 17).

Such a rollback would ultimately result in higher malpractice insurance rates for doctors and hospitals, higher health care costs for consumers, higher health insurance premiums for businesses and, of course, higher incomes for well-heeled trial lawyers.

Perhaps the "attack" of these lawyers on physicians and hospitals will only abate when enough doctors have left Maryland and enough hospitals have closed that they no longer have anyone left to sue.

There is numerous articles that have discredited the fallacy that medical malpractice lawsuits cause higher medical malpractice premiums, health care costs to consumers, and an exodus of doctors from sates.  In fact, look at California, they have had medical malpractice caps for over 20 years and there is no change compared to other states that have not passed tort reform.

In DC, there are no caps.  The last time I checked, there are no shortage of doctors or exodus.  In fact, the DC Metro area is overly saturated with physicians to the point where physicians' salaries are less here than many other parts of the country for a lack of demand.  With respect to higher premiums, if you look at the data, medical malpractice cases account for less than 1% of the health care costs in the country. 

The author's use of attack is indicative of the lack of facts to support the position taken by thus doctor.  This doctor should look at the insurance companies as for the cause of higher premiums an look at the insurance companies books before he blindly blames the "attacking" lawyer.

I suggest to this doctor or anyone who has the same viewpoint to pray that no one in their family is on  the receiving end of being malpracticed upon.

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The West Virginia Record wrote on January 9, 2009 a wonderful article about former Justice Larry Starcher overviewing his last days of his term and his fight to the end to protect the rights of individuals, including the areas of medical malpractice.

CHARLESTON - To the end, the old West Virginia Supreme Court of Appeals worked hard at making decisions. And former Justice Larry Starcher worked hard at disagreeing.

Starcher filed seven dissents on Dec. 30, the last day of his 12-year term, all celebrating his conviction that judges should keep rewriting laws."

 One such dissent was a medical malpractice case which The Record summarized as follows:

 Forshey v. Jackson

Left-handed locksmith Paul Forshey developed carpal tunnel syndrome, a wrist injury. Physician Theodore Jackson performed surgery in 1995.

Forshey's pain continued and a knot formed under his thumb. Jackson set exploratory surgery but cancelled it four days ahead of time.

Jackson rescheduled it, but Forshey cancelled it four days ahead of time.

In 2005, Forshey injured his left index finger. An X-ray revealed a piece of knife blade.

In 2006, Forshey sued Jackson in Kanawha Circuit Court.

Jackson moved to dismiss, relying on state law that sets an absolute limit of ten years on a medical malpractice claim.

Forshey argued that the statute didn't start running in 1995. He argued that it started running in 1997, when Jackson cancelled the exploratory surgery.

Circuit Judge Jennifer Bailey Walker dismissed the suit, and on Nov. 25 the Justices affirmed her.

Justice Robin Davis wrote that in order to beat the statute of limitations, Forshey had to show repetitious wrongful conduct.

"Merely establishing the continuation of the ill effects of an original wrongful act will not suffice," Davis wrote.

In dissent Starcher wrote, "The injury in this case wasn't just the scalpel blade left in the plaintiff's hand."

He wrote, "It was that the defendant doctor screwed up and committed malpractice by failing to properly diagnose the error in two years of trying."

He wrote that Walker should have let Forshey pursue the action, "which most likely would have resulted in a speedy settlement."

He wrote that "this Court will do whatever it takes to protect doctors and lawyers from malpractice claims -- no matter how meritorious those claims might be."
 

I believe the last line says it all!!!!

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