Unintended Consequences of Tort Reform

11/17/2008

"When I helped spearhead the tort reform movement in Nevada, I didn't foresee the unintended consequences of innocent, truly injured individuals not receiving their rightful awards due to jurors' misguided emotions. Had I been aware of that possibility, what would I have done?"  

Not words you would expect to hear from a doctor, but they are.  Arnold Wax, M.D., a Nevada oncologist recently wrote an article that appeared in the online publication The Medical Economist. In it, he recounts how he began treating a woman with a skin lesion in 2002.  The lesion was removed and sent to a pathologist for review.  The pathologist diagnosed a non-cancerous condition. In 2004 the lesion returned.  It was again removed and send to a pathologist, only this time it was read as being cancerous.
Dr. Wax was shocked.  The pathologist that read the slide in 2002 admitted he misread the slide. Dr. Wax was asked to be an expert witness 
(doctor's very rarely ever agree to be an expert for their patient) in the lawsuit for a woman he describes as a delightful widowed grandmother taking care of her grandchildren.  
Here is what he said: "
The trial lasted six days. I was on the witness stand for two hours for direct and cross examination. I described the statistical decrease in Mary's five-year survival, as well as all treatment variations between the different stages of melanoma. I also stated that I thought the pathologist's admission of his mistake was "honorable." As I'd expected, the jury found the original pathologist negligent. But, to my surprise, Mary wasn't awarded any damages. One of her attorneys later told me that the jury wanted to pin an award on the pathologist's professional corporation, but it hadn't been named in the suit. The jurors reasoned that the pathologist had not acted maliciously, and that if he were found liable for a monetary award, he might leave the state. They were likely influenced by political ads that ran during the state's tort reform ballot campaign, describing physicians who were leaving Nevada because of its malpractice crisis.The trial judge was incensed by the verdict, because the jury didn't follow the legal standard that should have been applied in the case. I was later informed that the defense attorneys planned to go after Mary for court costs, something that the judge vowed he'd never let happen."
Dr. Wax concludes his article with the realization that he did not fully consider the impact the caps on damages he had fought for would have on patients who suffered legitimate injuries.  
This is exactly what plaintiff's attorneys have been saying for years....
Hans