Regina Jones walks into the emergency room of a downtown hospital in Jackson, Miss., with her baby in one arm and her five-year-old daughter, Janeen, in tow. Janeen has been complaining of a headache for the last two days. Regina is not sure if it’s just an appeal to get some attention or if it’s real. Janeen hasn’t eaten for 24 hours, so Regina had gotten her mother to stay with her three-year old and had caught the bus to the hospital.
After three hours waiting, Janeen finally gets in to see an emergency room doctor. The doctor seems distracted, asks a few questions, and then prescribes some painkiller that Regina can’t afford. He says that they could do a bunch of expensive tests, but he thinks it’s likely the headache is connected to the upset stomach: there is a flu going around. He then tells Regina to make sure she keeps Janeen “hydrated” and to keep an eye on her. He sends them home.
Sometime that night Janeen, unbeknownst to her mother, becomes unconscious. Regina finds her in the morning when she comes in to wake her up for school. Janeen had died during the night.
After the burial and while dealing with her grief, Regina starts to ask questions. She first questions herself, wondering if she didn’t hear her daughter calling her the night she died. She wonders if she could have done anything to help. She wonders if she could have done anything differently. What she knows is that she aches inside, and the ache won’t go away.
Later, Regina is told that Janeen had bleeding in the brain that had likely started the day before, when she first complained of headaches. Regina is asked by her case worker whether she had beaten her child! Regina is appalled and denies that she would ever hit her child. The case worker then asks Regina if Janeen had complained of headaches, and why Regina didn’t take Janeen to the hospital. It is then that the full story comes out.
Her case worker thinks she ought to go see a lawyer, and two weeks later, she does.
What parent among us wouldn’t seek answers for the sudden, unexplained death of a child? And is it a just answer to Regina to say that she is somehow immoral if she seeks answers in the court? Or that she shouldn’t seek the expert help of a lawyer? Or that, “Regina, we are sorry, but in order to save medical costs we need to limit recovery to Janeen’s economic damages — the wages she was making at the time of the injury. Oh, she wasn’t making a wage. Well, if she were making millions, we would pay for that, but if not, then, sorry, but we have to limit your recovery.”
The questions Dr. Kurt Kooyer poses in the Fall 2003 Spark about conditions on the Mississippi are important ones, but the “tort reform” answers he offers need to be looked at with care. Many scholars of American tort law believe that our justice system is an important stop gap against the violence and frustration brought about by racism and poverty. So, before we jump on the bandwagon of “tort reform,” I wonder whether we need first to ask whether limiting a poor person’s right to recovery leads away from justice; from examining conditions that create and sustain segregation, racism and poverty; and from an examination of the medical profession’s role in the medical care crisis.
It is important to remember that in Mississippi, as in every state in the union, when a child, or anyone, is injured, people in the U.S., as is their right, turn to the courts to find out if someone is negligent or to blame. So Mississippians sue in court to try to get justice. Yes, even poor, uneducated, black people can sue. They learned about using the courts to desegregate the schools and to get voting rights. Sometimes they use the courts to prove to themselves that they aren’t to blame. Californians, Michiganders, Texans and Virginians; Caucasians, Hispanics, African-Americans, no matter what their race; they sue car drivers, garbage collectors, construction workers, architects, corporate executives, lawyers and, yes, doctors, too. Everyone is accountable for his or her actions.
And everyone who is sued may say, as is their right, “I didn’t do it; I didn’t mean to; it wasn’t my fault. Prove it.” If a person wants protection, he or she buys liability insurance. And doctors buy malpractice insurance. They pay premiums, and sometimes the premiums are high. The premium costs reflect the risks a doctor takes, a doctor’s history of care and the investment decisions of the malpractice carrier.
If you are the doctor/defendant, it is hard to believe that you are going to get a fair hearing from people who aren’t like you. And, of course, part of the problem is that people in Jackson, Miss., as across America, have mixed experiences with the medical profession. Some have been subjected to subordinate care, long waits in waiting rooms, and exorbitant costs for drugs and services they cannot refuse. We know that 43 million Americans (more than the total population of 26 states combined) have waited in assembly-line emergency rooms because they don’t have jobs that provide us with medical insurance. A number of the uninsureds, unemployed and poor live in Mississippi.
As a result of these experiences, it might be hard to expect these potential jurors to give the doctor a fair shake. Is it our own prejudice that leads us to believe they won’t act fairly? They take their jobs seriously. They listen to the evidence and decide the case based on that evidence. They know that fakers and frauds cost us all a lot of money. They are skeptical. They weigh the evidence. It is their sworn duty to do so. Both sides have lawyers whose job it is to ensure that each side gets a complete hearing. Doctors can afford the best, and our system is set up to ensure that plaintiffs, too, can get the best if their case is meritorious. After all, most lawyers won’t bother to take a case if it doesn’t have merit.
At a conference recently at Emory University School of Law, former President Jimmy Carter spoke passionately against the continued segregation, racism and poverty in the U.S. and the world. He challenged the law school community to make a difference and create an atmosphere where people live together, work together, and help create a just, caring community together, no matter what their race, social economic status, religion or creed. He argued that this takes hard work. We need to build a community of trust, respect, caring, justice and freedom. And the “rule of law” is key. It must treat people with respect and dignity. They must have a chance to tell their stories. And it must treat all people fairly.
His challenge is for us all, doctors and lawyers alike. How do the professions respect all people, rich and poor, young and old, no matter what their race? A place to start is to live in community with those you serve, educate your children at the same schools, spend time getting to know your clients and patients, and build the genuine sense of caring and trust that comes when people live together and work together.
How can the medical profession help build that kind of community? I feel strongly that denying poor individuals access to the legal system is the wrong solution. Let’s not limit their recovery with a plea that stereotypes the people who demand justice, and may create even more division and mistrust than it remedies. No, “tort reform” of this sort will set up even more mistrust and will exacerbate the divisions between rich and poor, black and white, and those who make large incomes and those who don’t.
Two arguments used by Dr. Kooyer are particularly troubling. He tells us of his questioning of an individual juror about why a power company had to pay $10 million to a man who touched a metal pipe to a power line. His story leaves much unexplained. If he had asked the judge in the case, he would have likely been told that to get to the jury, the judge had to first decide that a reasonable jury could conclude there was negligence. Second, the jury, collectively, had to find, by a preponderance of evidence, that the power company was negligent. There are a number of possible explanations that occur, even from Dr. Kooyer’s telling of the facts. Perhaps the jurors found that the power company didn’t warn workers of the uninsulated wire. Or perhaps they found that the power company knew workers and others could come into contact with the exposed power line, or they didn’t take reasonable steps to protect or insulate it, or bury the wire to protect the plaintiff from injury. Regarding the $10 million, how much of that was compensatory damages for lost wages, how much for pain and suffering, how much for the medical bills, past and future, and how much for punitive damages? Finally, the trial court again looks to see if the jury verdict is supported by the evidence and reduces the award if it is excessive. Then the appellate court can review it again. Leaving these facts out creates a false impression of the case.
Second, Dr. Kooyer’s use of the Fen-Phen litigation is also questionable. It puts too much on the reader to know that Fen-Phen is of marginal relevance to malpractice litigation. Is it impossible that a powerful pharmaceutical company might enrich itself on the backs of an unsuspecting group of patients and need to be punished for it? In the aftermath of Enron and WorldCom, it doesn’t seem that far-fetched to believe that a company might trade profits for public safety. The courts write opinions that describe their holdings and apply the rule of law. If products liability law is not working, then it needs be rewritten, and the legislature is a place to go to fashion a remedy. As written, our system has strong safeguards to ensure that it is applied fairly and equitably.
The point is that plaintiffs may choose to sue in poor counties, where juries may better feel the outrage that comes when you learn that an institution has chosen profits over your protection. If some plaintiffs live in that county, it is their right to sue in their own court. And most importantly, this evidence has little to do with medical malpractice. It needs to be read tempered by the facts in that case.
No, to address the crisis in the Delta is to do the hard work of combating poverty and racism there and all over the U.S. Subconscious racism can affect our thinking, whether we are from North Dakota, Michigan or Georgia. And we must all ask questions about how the market can combat rising medical costs fairly, including a way where doctors have to look at what they charge, how they compensate their staff, and how they treat their patients, as well as how lawyers, judges and courts ensure that all people are treated fairly.
Maybe it is time to take the profit out of the practice. If doctors want lower malpractice rates, maybe we can cap what they charge, or we might enact a national medical insurance plan — a plan that everyone must live with, rich and poor. That may be a fairer trade if the costs of medical care are really too high to bear.
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