Tort Reform and the Legal Nurse Consultant

By Vickie Milazzo

Does tort reform limit opportunities for legal nurse consultants? Absolutely not. As the pioneer in the field of legal nurse consulting, I have watched this profession grow and flourish during the last 21 years. Throughout that time many states have implemented some kind of reform, mostly involving non-economic damages (pain and suffering). Yet in every state where tort reform is in place, legal nurse consultants are actively and successfully practicing and growing their businesses by leaps and bounds. We will continue to enjoy even more electrifying growth over the next ten years.

Here's why:

1. The number of U.S. attorneys continues to increase annually. Currently there are 1,058,662* attorneys in the U.S. and, as the Houston Chronicle states, at least "25 percent deal with medical malpractice and personal injury cases."

2. At the national level, the U.S. Senate said "no" to a tort reform bill that sought to limit non-economic damages (pain and suffering) in malpractice suits to $250,000. Even if the Senate bill had passed, legal nurse consultants would still have plenty of cases to work on.

3. Most medical malpractice cases legal nurse consultants consult on involve significant economic damages, such as medical expenses and lost earning capacity. These high-dollar cases will continue to keeplegal nurse consultants busy.

4. Legal nurse consultants don't just consult on medical malpractice cases. We consult on general personal injury, products liability, toxic tort, criminal and a variety of other cases. Injury cases of all kinds will be with us as long as Americans breathe. Recovery for negligent injuries and the lost wages, medical bills and the like resulting from those injuries is the American way and is an ancient right that goes back to Mesopotamia in 2100 B.C.

5. In states that limit non-economic damages, attorneys are a bit more selective, concentrating on cases with significant physical and psychological damages (not just emotional distress or pain and suffering). That means both plaintiff and defense attorneys increasingly rely on legal nurse consultants for assurance that they're making the best business decision in each case they take on. I even see a day when it will be considered legal malpractice for an attorney not to have legal nurse consultants working behind the scenes on their cases.

Medical malpractice cases simply aren't going away. According to a March 3, 2003 article in BusinessWeek, the National Center for State Courts found that, despite tort reform, the national volume of medical malpractice cases filed has not changed over the last five years.

One factor contributing to the ongoing flood of litigation: Medical errors in hospitals kill up to 98,000 people each year, according to a 1999 study by the National Academy of Sciences Institute of Medicine.

That's 268 patients per day, or the equivalent of a fully loaded jumbo jet crashing every other day.

This death toll is higher than the number of people who die from AIDS, breast cancer and car accidents combined.

All of the legal nurse consultants I know would actually welcome a shortage of these cases.

Where's the Real "Crisis"?

Isn't this "attack on America" with so many people being killed in hospitals what we should be reforming? Instead of worrying about tort reform, we should be concerned about the Dark Ages of Healthcare perpetrated by managed care and the negligent providers who kill 268 hospital patients every day.

In spite of this boom in hospital "victims," according to the BusinessWeek article mentioned above, the National Practitioner Data Bank (NPDB) reported that over the past ten years malpractice payouts have grown an average of only 6.2% per year. Yet the Journal of Health Affairs showed that the average rate of medical cost inflation over that same ten-year period was 6.7%. This doesn't sound like an explosion in malpractice awards to me.

We are not experiencing a crisis of litigation but a crisis of malpractice.

The NPDB reported that from 1990 to 2002, 5% of U.S. doctors were responsible for 54% of medical malpractice payouts, including jury awards and out-of-court settlements.

The NPDB breaks this down further: Of 35,000 doctors with two or more payouts during that period, only 8% were disciplined, and of the 2,774 doctors who made payments in at least five cases, only 463 were disciplined.

The severity of that "discipline" is open to question. On August 28, 2003, the Houston Chronicle reported on the case of a Houston doctor who had been sued 78 times and made payouts in 45 cases totaling more than $13.3 million. His punishment? The temporary suspension of his license. I find this especially appalling since I myself consulted on many cases against this doctor as far back as the early 1980s.

Even these "bad apples" in the medical profession don't significantly increase malpractice insurance premiums for the rest of the doctors. The truth is that insurance companies do not make their money from premiums, but from investing those premiums. When interest rates and returns are high, the companies prosper and often reduce premiums in competition with one another. When interest rates are low (as they are now), the companies' returns suffer, and they must raise premiums to make up for the loss of investment income. In June 2003, the General Accounting Office issued a report to Congress (GAO-03-702, available at www.gao.gov) which found that insurers' pricing decisions were affected not only by their losses on malpractice claims, but also by their loss of income from investments, prior premium history and other market conditions such as market share and the level of competition.

The bottom line on tort reform is this: Research has shown that there is no evidence of rising jury awards or the so-called high cost of litigation, and that the economy is the key to rising malpractice insurance premiums.

As unfortunate as they are, high-profile litigants like Linda McDougal (the woman whose doctor conducted an unwarranted double-mastectomy) and Jessica Santillan (the 17-year-old whose doctors failed to match her organ donor) may help to educate the public. The tragedy is that the healthcare system can disfigure or kill someone and still have the nerve to ask for a cap on damages, a concept that in effect frees these paid professionals and for-profit institutions from personal accountability. Try explaining that to the injured person and their family.

As long as the healthcare industry fails to police itself, there will be plenty of work for all of us.