The Judge, Medical Malpractice and Tort Reform

medical_malpractice_sponge.jpgA recent story out of Florida illustrates neatly what tort reform means for the victims of medical malpractice and should help most people figure out what side of the debate they come down on.
Judge Nelson Bailey checked into a Florida hospital for a procedure to treat his diverticulitis. He checked out with a one square foot surgical sponge that surgeons forgot in his intestines. It’s one of the most common medical malpractice scenarios, one that affects 3,000 patients a year: a surgical team leaves a sponge or instrument inside a patient, who is sewn up and sent home.
The sponge of course caused an infection and abdominal pains that led Judge Bailey to go back to the doctor’s. Despite the fact that the surgical sponge was equipped with a tag that is designed to make it stand out clearly during medical imagine procedures, the sponge was not spotted over the course of several CT scans that were performed on Judge Bailey to diagnose his new abdominal pain.
By the time the radiologists caught the sponge, the infection had rotted away part of his intestine, which had to be removed. Judge Bailey can no longer venture far from a bathroom for an extended period of time and has had to give up one of his favorite hobbies: horseback riding.
One of the tort reform movement’s hobbyhorses is caps on pain and suffering damages. A number of states have adopted $250,000 caps on pain and suffering damages in medical malpractice cases. Florida has adopted a set of slightly higher caps.
Look at how those caps would apply in Judge Bailey’s cases. Bailey’s economic damages from the medical malpractice are likely to be low since he’ll continue to sit on the bench, though doubtless juries will wonder why he keeps taking breaks in the middle of trials. His future medical expenses will be next to nothing because Judge Bailey isn’t going to require long-term treatment; it’s basically as good as it gets for Judge Bailey at this point.
But for the rest of his life, Judge Bailey will be unable to carry on his favorite hobby, unable to go on long drives or hikes and, while on the bench doing his job, will probably be distracted by the rumblings of his stomach as lawyers drone on in front of him. And for that, a number of states would say he’s entitled at most to $250,000.
Good luck finding a medical malpractice lawyer to take on that case.
Judge Bailey wants the hospital that he was at to adopt new technology that would help catch surgical sponges left inside of patients. Would Good Samaritan Hospital be more likely to invest in new technology under a regime where its liability for pain and suffering is capped at $250,000 or where a jury determines its limits?
Post Script: Thanks to Professor Alberto Bernabe, who drew my attention to the comments section of The Wall Street Journal article. It was surprising how many people (even in this obviously self-selecting and non-representative group) seem to believe that caveat emptor should apply to consumers of medical services.

This blog is maintained by the Boston medical malpractice lawyers at The Law Office of Alan H. Crede, P.C. The blog neither contains nor offers legal advice.