In February 2003, NJ doctors went on strike to protest the state’s skyrocketing malpractice insurance rates. Insurance companies claimed that rates had climbed due to the staggering number of medical malpractice suits that year. The incident attracted the attention of Americans for Insurance Reform (AIR), who launched a comprehensive study of New Jersey medical malpractice insurance. The results were conclusive: The average NJ medical malpractice attorney, “already demonized by President Bush in his demand for tight tort reform,”[1] was not at all the thief that insurance industry lobbyists made him out to be, and neither was his client.

AIR’s conclusions were twofold: First, that payouts for New Jersey medical malpractice suits had remained fairly constant over the previous sixteen years; and second, that premiums charged to doctors had little or no correlation to payouts rendered. This incongruity underscored the falsity of  insurance industry claims that premiums had risen as a result of payouts rendered. The discovery sparked further investigation, which revealed to the real instigator of insurance rate change: The economy.

In times of economic instability or uncertainty, the Fed cuts interests rates, thereby reducing the amount of investment income seen by insurance companies. Because insurance companies derive the majority of their profits from this investment income, they are forced to hike insurance premiums to compensate for losses. AIR’s study concluded that NJ premium hikes, occurring at intervals of roughly every ten years (in the early 70s, 80s, 90s, etc.), directly corresponded to such Fed interest rate cuts.[2]

This revelation led to the investigation of several other myths concerning medical malpractice litigation. A 2006 study conducted by researchers at Harvard University, for instance, concluded, “Portraits of a malpractice system that is stricken with frivolous litigation are overblown.”[3] The truth is in the numbers: Compared to the estimated 238 thousand deaths that occur each year as a result of preventable medical errors (including birth injury) the justice system awards only 38 thousand payouts—if anything, the issue here is the abundance of medical errors, not the number of victims compensated. Moreover, according to the Congressional Budget Office,[4] these payouts amount to less than two percent of the overall cost of healthcare—not exactly the driver of healthcare costs that lobbyists made them out to be.

But healthcare cost is not the only argument insurance industry lobbyists use to push for settlement caps—there are a variety of other reasons, they say. Amongst them, that doctors flee or retire early in states where settlement caps have yet to be instituted; and also, that doctors who choose not to flee or retire early practice “defensive medicine,” or order superfluous tests and procedures to avoid negligence suits, and thus unnecessarily inflate the cost of healthcare. It’s no surprise that these claims, too, are false.

Doctors are not fleeing the profession, nor are they avoiding states without settlement caps.  Recent studies have shown that the number of doctors nationwide is increasing faster than the population, and what’s more, that “the ratio of doctors to population is higher in states without caps.”[5]

Though investigations into the practice of defensive medicine have yet to reveal its prevalence in the field, the reasons for its implementation (if and when it occurs) are clear: Doctors who practice defensive medicine do so either out of genuine concern for patients or as a means of bolstering income. Private practices in Florida came under close scrutiny, for instance, when “health authorities determined diagnostic-imaging centers and clinical labs were ordering additional tests because the majority were physician-owned and the tests provided a lucrative stream of income.”[6] In fact, an article published in the Cornell Law Review found that fear of medical malpractice insurance was the reason for the implementation of defensive medicine less than one percent of the time.

Settlement caps on malpractice suits fail to address the problems insurance industry lobbyists say they do. Why would they push for them? Because the insurance companies are the ones responsible for paying the settlements. These companies have gone through great pains to concoct and spread myths regarding not just New Jersey medical malpractice litigation, but medical malpractice litigation nationwide. One thing remains clear, however: Medical negligence infringes on the American citizen’s right to life liberty, and the pursuit of happiness and must therefore be stopped. When malpractice results in a birth injury like cerebral palsy, it’s not just the child who suffers, it’s the child’s entire family. In such cases, the damage is limitless—so too should be the punishment.

[1] “The Doctor is out in NJ.” The New York Times 02 Feb 2005 Web.27 Jun 2009. http://www.nytimes.com/2003/02/05/opinion/the-doctor-is-out-in-new-jersey.html.

[2] “Medical Malpractice Insurance: Stable Losses/Unstable Rates in New Jersey.” Jan 2003 Web.27 Jun 2009. <http://www.centerjd.org/air/issues/StableLossesNJ.pdf>.

[3] David M. Studdert, Michelle M. Mello, Atul A. Gawande, Tejal K. Ghandi, Allen Kachalia, Catherine Yoon, Ann Louise Puopolo, Troyen A. Brennan, Claims, Errors and Compensation Payments in Medical Malpractice Litigation, New England Journal of Medicine, 354;19, May 11, 2006.

[4] Limiting Tort Liability for Medical Malpractice, Congressional Budget Office, January 8, 2004.

[5] “AMA Data: Doctors Not Fleeing The Profession.” American Association for Justice Web.27 Jun 2009. <http://www.justice.org/cps/rde/xchg/justice/hs.xsl/8691.htm>.

[6] “AMA Data: Doctors Not Fleeing The Profession.” American Association for Justice Web.27 Jun 2009. http://www.justice.org/cps/rde/xchg/justice/hs.xsl/8691.htm.

Written by Nick Bakshi

Results from three new studies, published in the Journal of the American Medical Association, on critically ill patients who contracted H1N1 showed that for some people H1N1 was only a mild case of the flu, while for others it was a life threatening condition that required aggressive treatments in intensive care units. The condition of the patients observed in the JAMA studies deteriorated rapidly soon after they were hospitalized.  Their symptoms progressed to respiratory failure, and shock, which led to organ dysfunction and failure. Although only a small number of people who contract H1N1 become severely ill, health authorities are nevertheless concern about an outbreak that can overwhelm the country’s intensive-care facilities. Dr. Anne Schuchat, the Center of Disease Control’s Director of Immunization and Respiratory Diseases, said there was “significant flu activity in virtually all sates,” which she added was “quite unusual at this time of year.”

Dr. Schuchat expressed particular worry regarding pregnant women. A disturbingly disproportionate number of pregnant women were affected by H1N1. As of late August, over 100 pregnant women were hospitalized in intensive care units and 28 had died since the beginning of the outbreak in April. According to federal studies released late September 2009, pregnant women infected with H1N1 were four times more likely to be hospitalized and perhaps are more likely to die from H1N1. Of the 45 deaths reported between April 15 and June 16, 2009, 13% were among pregnant women. All of them had been healthy prior to contracting H1N1 and subsequently developed viral pneumonia, leading to acute respiratory distress that required them to be placed on ventilators.

It is unclear why pregnant women are more susceptible to the more severe effects of H1N1.  However, it is hypothesized that it is due to the immunological shift that occurs during pregnancy, which affects the body’s ability to fight off viruses. Symptoms of H1N1 include:

• Fever
• Cough
• Sore throat
• Runny or stuffy nose
• Body aches
• Headache
• Chills
• Fatigue
• Sometimes diarrhea and vomiting

Maternal fevers during the first trimester increases the risk of birth defects to the child and maternal fevers during labor has been shown to be a risk factor for the development of birth defects such as seizures and cerebral palsy. 

If a woman who is pregnant suspects that she has symptoms of the flu, it is recommended for her to go to the emergency room or contact her healthcare provider immediately.

The grieving family of late sergeant Cindy Wilson received a second devastating emotional blow after learning that they were unable to seek legal damages against the negligent medical team responsible for Cindy’s death. Laboring to deliver her first child, a son, 37-year old Wilson underwent a cesarean section that went horribly wrong. During this surgery, the doctors severed a major uterine artery, which caused massive bleeding leading to Ms. Wilson’s death just 12 hours later. Furthermore, a medical investigation found that the doctors had left two medical sponges inside Ms. Wilson before stitching her up, a ghastly medical mistake that often results in infection and death.

Despite clear evidence that Ms. Wilson’s death was the direct result of gross medical malpractice, her widowed husband, now-motherless child and grieving parents are unable to sue for wrongful death because of a federal legal statute that prevents service members and their families from collecting damages for personal injuries, wrongful death, and loss of consortium from other members of the military. To make matters worse, another federal law mandating confidentiality of medical quality assurance records has prevented Cindy’s grieving family from access to the medical investigation findings pertaining to her death. Further adding insult to injury, the lead obstetrician during Cindy’s c-section continues to practice and received no professional disciplinary action.

Sadly, Ms. Wilson’s case is not the only instance of gross military medical malpractice for which the aggrieved have been able to see compensation. The following are just some recent cases of military medical malpractice that have not had their day in court due to the Feres Doctrine.

• A naval officer died after his cancer was diagnosed as eczema.
• An air force sergeant suffered irreparable brain damage after doctors failed to diagnose his appendicitis.
• A sailor was rendered infertile when military surgeons left five sponges and a plastic device in her stomach during surgery.
• A marine sergeant died of undiagnosed and untreated cancer, despite having several medical exams by military personnel.
• A navy petty officer suffered permanent brain damage after doctors failed to treat him for an uncomplicated case of pneumonia.

In all of these cases, the injured and their grieving family were unable to seek damages due to the Feres Doctrine.

What is the Feres Doctrine?

The Feres Doctrine is a federal statute established during a series of court cases including a landmark Supreme Court case in 1950 (Feres v. United States) involving a member of the armed services who died after an Army doctor left a 30 by 18 inch towel in his body during surgery. In this case, the Supreme Court ruled that the US and members of its armed services cannot be held liable under the Federal Tort Claims Act for injuries to other military members during active duty.

Originally the federal law was meant to bar medical malpractice lawsuits only in cases of combat-related injuries, but the Feres Doctrine broadened the US government’s protection from liability to all cases of military medical malpractice.

Reactions to the Feres Doctrine

Military families, lawyers, and Congress members have long been opposed to the Feres Doctrine, arguing that the law renders service members second-class citizens. They also point to increased cases of military medical malpractice in the absence of any legal consequences for such negligence. According to Jonathan Turley, a law professor at George Washington University, these above-mentioned cases illustrate how the Feres Doctrine has contributed to substandard military medical care. He considers the Doctrine one of the most grotesque rules created in the history of this country and says that it has done untold damage to thousands of military personnel and their loved ones.

Supreme Court judges have hotly contested the Feres Doctrine since its inception. In a 1987 Supreme Court decision Justices John Paul Stevens and Antonio Scalia dissented to a reaffirmation of the Doctrine by declaring it wrongly decided and deserving of the widespread almost universal criticism it has received.

Attempted to repeal this unjust law have surfaced routinely in the last 20 years but without success. One reason cited for this failure is the costs associated with upgrading the military medical system to meet basic civilian medical standards. “Congress simply doesn’t want to spend the money,” says Turley. “Soldiers and sailors are a real bargain to kill and injure in the United States.”

The surveillance tape shows medical staff, security guards and other patients walking past Green as she struggled desperately for her life. According to medical examiners, Ms. Green was suffering from blood clots. It was over an hour after Ms. Green had collapsed in her struggle before a nurse came over to check her pulse and announce her death.

The US Department of Justice cites Ms. Green’s death as part of a larger pattern of medical negligence, inadequate care, violence, and sexual abuse perpetrated against patients at Kings County Medical Hospital in New York City. This federal report went public when the president of New York’s Health and Hospital Corporation, Alan Aviles, announced reforms for the hospital including the replacement of two head administrators and the addition of 200 medical professionals to its 600-person staff. An additional six hospital employees were fired after Ms. Green’s death.

Mr. Aviles hopes that the changes made within the hospital will reduce psychiatric patient’s ER waiting room time to 6 hours from a shocking 27 hours. He added that the settlement awarded to Ms. Green’s family through the wrongful death medical malpractice settlement was not meant to put a value on a person’s life and the suffering of their loved ones. He hoped that this tragedy would compel the hospital to create a national model for patient-based health care and mental health services.
Ms. Green’s family is still awaiting a complete investigation of her case, according to their family lawyer.”What remains most important to this family is the criminal culpability for those responsible for what happened and those who attempted to cover it up,” the personal injury attorney added.

Who is Sonia Sotomayor?

Sonia Sotomayor, born in the New York City borough of the Bronx in 1954, has worked tirelessly in the legal profession for over 30 years. As a former New York City District Attorney prosecutor and private practice attorney, Sotomayor joined the US Federal Court system in 1992 when she became the youngest and first Puerto Rican American to become a judge for the US District Court. She later became a judge for the US Court of Appeals and is now under consideration for a Justice position with the US Supreme Court, the highest court in our nation.

Sotomayor Timeline

June 23, 1954       Sonia Sotomayor is born in the Bronx, New York
1962                         Diagnosed with diabetes at age 8
1976                         Graduates from Princeton University summa cum laude
1979                         Receives her JD at Yale and serves as Editor of Yale Law School
Journal
Early                        1980s serves as a prosecutor for Manhattan District Attorney’s office
1983                         Divorced
1984                         Enters private legal practice
1992                         Became the youngest person and the first Puerto Rican
American to be appointed as a United States District Court
judge for the Southern District of New York
1998                        Began serving as a judge for the United States Court of Appeals for the Second Circuit
May 2009             President Barack Obama nominates Sotomayor for the Supreme Court, to replace retiring judge David H Souter.

Considered neither an extreme liberal nor a crusader, Sotomayor has earned a reputation as an astute, outspoken, fearless, and sometimes sharp-tongued judge who is unswayed by powerful political interests.

With regards to predicting her views on major current issues, it is unclear where Sotomayor may side on matters such as abortion, gay marriage, and big business. Some abortion rights activists feel Sotomayor may not be a reliable vote to assure that Roe v Wade is upheld at this moment when the nation is deeply divided over abortion and its legality. Lawyers and scholars say they are unable to clearly place Sotomayor as either pro or anti-business.

Primer on the Supreme Court

The Supreme Court, the highest judicial body in the US, consists of nine Supreme Court Justices including one Chief Justice. All Justices are nominated by the President, confirmed by a Senate majority, and serve for life. In contemporary times, once a judge has been nominated a Senate Judiciary Committee forms to conduct hearings, question nominees, and determine their suitability. Following their confirmation hearings, the Committee votes on whether the nomination should go to the full Senate with a positive, negative or neutral report. While it is possible for a President to withdrawal his nomination of a candidate if he feels the nominee will not be confirmed, historically the Senate usually confirms a President’s nominee.

Current Supreme Court Justices

The current Supreme Court bench is composed of nine justices:

1. Chief Justice John Roberts (age 54)- nominated by GW Bush
2. Justice John Paul Stevens (89)- nominated by Ford
3. Justice Antonin Scalia (73)- nominated by Reagan
4. Justice Anthony Kennedy (72)- nominated by Reagan
5. Justice Clarence Thomas (60)- nominated by GHW Bush
6. Justice Ruth Bader Ginsburg (76)- nominated by Clinton
7. Justice Stephen Breyer (70)- nominated by Clinton
8. Justice Samuel Alito (59) – nominated by GW Bush
9. Justice David Souter (69) – nominated by GHW Bush

The Sotomayor Nomination

If Sotomayor is confirmed, she will be the first Latina woman to ever serve on the Supreme Court. This fact has Conservative critics in a sticky position as they attempt to weigh the price of aggressive opposition to the first Hispanic Supreme Court nominee at a time when they are trying so desperately to appeal to Hispanic voters.
Furthermore, if confirmed, Sotomayor will be one of two women currently serving on the Supreme Court and the third woman ever two fill this position.