According to the Journal of the American Medical Association, as many as 225,000 people die each year from acts of medical negligence. This includes around 12,000 deaths from unnecessary surgery and 7,000 deaths from medication errors in hospitals. Despite the prevalence of healthcare provider malpractice and the often devastating effects of even small acts of negligence, patients’ rights to recover the damages caused by medical malpractice have been extensively targeted by lobbyists for insurance companies and physicians associations. These lobbying efforts have had tremendous success over the last two decades and have resulted in special interest laws that restrict the time injured patients have to file lawsuits, the hoops people have to jump through to simply get into the courthouse, as well as the amount of money available to victims of malpractice. The result? Medical malpractice claims are 1) difficult, 2) time consuming, 3) incredibly expensive and 4) limited in the amount of money a hurt patient can recover. For those reasons, the number of law firms who take on medical negligence claims are dwindling. It is becoming harder and harder for injured patients to be compensated for clearly negligent acts by physicians and/or medical staff.
Let’s start at the beginning: what constitutes medical malpractice? Medical malpractice is defined under Montana law as “‘Malpractice claim’ means any claim or potential claim of a Claimant against a health care provider for medical or dental treatment, lack of medical or dental treatment, or other alleged departure from accepted standards of health care in the rendering of professional services which causes injury to the Claimant, whether the Claimant’s claim or potential claim sounds in tort or contract, and includes but is not limited to allegations of battery or wrongful death.” Mont. Code Ann. § 27-6-103(5).
As a result of intensive lobbying efforts by insurers and physicians organizations, the Montana legislature has enacted Mont. Code Ann. § 27-2-205(1) requiring that any claim alleging medical negligence (malpractice) be commenced within 2 years “after the date of injury or 2 years after the plaintiff discovers or through the use of reasonable diligence should have discovered the injury…but in no case may an action be commenced after 5 years from the date of injury.” This is an example of special interest legislation at its finest. The standard statute of limitations for torts (like a car crash or slip and fall) is 3 years. In addition to being required to first submit to the MMLP, the time available for an injured patient to sue a doctor or hospital is shorter than other types of injuries. Plus, the statute expressly forbids any cause of action for medical malpractice that occurred over five years ago, regardless of whether the patient knew or should have been aware that they had a claim. No other individuals in a professional field (including attorneys, accountants, real estate agents, or any other professionals) have this type of protection granted from the legislature. Truly, no other occupation has so many strong protections intended to limit liability for negligent acts committed in the course of practicing their profession. As the statistics on medical malpractice show, medical errors are a huge problem that hundreds of thousands of people and families suffer from each year.
Intensive lobbying efforts have resulted in the creation an administrative body known as the Montana Medical Legal Panel (MMLP). The MMLP is made up of six Panel members: 3 health care professionals and 3 attorneys. All six are randomly chosen. The Panel’s stated purpose is “to prevent where possible the filing in court of actions against health care providers and their employees for professional liability in situations where the facts do not permit at least a reasonable inference of malpractice and to make possible the fair and equitable disposition of such claims against health care providers as are or reasonably may be well founded.” Mont. Code Ann. § 27-6-102. In other words, the MMLP’s job is to make it more difficult to file a lawsuit against a doctor or hospital alleging medical malpractice. Thus, prior to ever setting foot in a courthouse or even filing a Complaint in court, a claimant (also known as a plaintiff after filing the complaint) must submit the claim to the Panel. The MMLP hears the evidence from both the claimant and the healthcare provider and issues a decision on 1) whether the healthcare professional violated his/her/its professional standard of care, and if so, 2) whether that violation caused the claimant’s damages.
Let’s say you have filed a claim with the MMLP and after presenting your evidence, the Panel finds 6-0 in favor of the doctor, concluding the doctor did not violate the professional standard of care in his/her profession. What happens then? After the Panel decides (either for or against you), then and only then can you file your lawsuit in court. Again, there are special rules about the time within which you must serve your lawsuit on the healthcare professional. Typically, you have 3 years after filing a lawsuit to serve it on the defendant. Filing the lawsuit ensures you are not barred by the statute of limitations. But if you are not ready for the court to set a date for your trial and all of the things that have to happen before your trial, you generally have 3 years to give the lawsuit to the defendant, who then has to respond within a short amount of time. However, in medical malpractice claims, you only have six months to serve your lawsuit on the defendant and launch into litigation, ready or not. The clock begins to tick thirty days after the MMLP issues its decision. Again, this six moth window to serve the lawsuit is a special law that only applies to healthcare professionals and hospitals. No other industry or profession has such a limitation on claims against its members.
So, you’ve won or lost at the MMLP and it is time to litigate your medical malpractice claim. What do you have to prove to a jury and how do you have to prove it? The Court has said that plaintiffs in medical malpractice claims must have an expert witness in the same field as the medical professional being sued. In other words, if you are suing an orthopedic surgeon for accidentally removing your right leg rather than your left, you are required to find and hire another orthopedic surgeon. As you can imagine, orthopedic surgeons are not inexpensive, often charging over $1,000 per hour spent on your case. This can and often does result in a single expert witness bill exceeding $25,000. Further, the medical community is protective of its members and finding a doctor willing to testify that another doctor made a mistake can be a huge challenge. More often than not, it requires finding an out of state physician. The costs just keep piling up if you want to sue a medical professional for screwing up.
As the costs of bringing a suit mount, the legislature has also enacted laws restricting the amount of money a plaintiff can recover from a doctor. Due to the very effective lobbying of insurance companies, Montana’s legislature has enacted laws that put a “cap” on certain kinds of damages. Mont. Code Ann. § 25-9-411 limits the amount of money available to a plaintiff for “non-economic damages” to $250,000. Non-economic damages are things like compensation for pain and suffering, stress and anxiety, loss of enjoyment of life, scarring and disfigurement, and similar harm caused by the defendant’s malpractice. This so called “non-economic damages cap” is especially problematic in cases involving the death of a child. The economic damages (medical bills, the cost of future medical care, reimbursement of lost earnings, compensation for the injured party’s inability to work, etc.) are minimal when a baby or child is wrongfully killed due to a mistake in the emergency room, for example. It is difficult to imagine a more emotionally devastating event to any parent than the death of a child. Regardless, the legislature has limited the parents’ right to recover for the suffering caused by the death of their child to $250,000.
The effect of this special law capping non-economic damages can be dramatic. Imagine two different scenarios: 1) you are on your way to the ER because your child is extremely sick and you are struck by an inattentive driver and that crash kills your child; 2) you avoid any car collision on the way to the ER, but when you get there, the nursing staff administers 10 times the safe dosage of a medication to your child, causing your child to go into cardiac arrest and ultimately die. Both scenarios involve the exact same result: your child has died due to the negligence of someone else. However, if your child dies in the car accident, there is no limitation on what a jury can award for the emotional devastation resulting from the loss of your child. On the other hand, if you make it to the hospital and your child perishes due to a medical mistake, the jury can find that your emotional distress entitles you to an award of (as an example) $5 million. What the jury does not know (and will never be told) is that their decision to award $5 million will be reduced by the judge because of the non-economic damages cap. In the end, the jury’s $5 million verdict translates to compensation of no more than $250,000. The law specifically states that “the $250,000 limit … may not be disclosed to a jury.” Mont. Code Ann. 25-9-411.
In summation, medical malpractice cases are very unique and patients’ rights have been slowly but dramatically diluted by “tort reform.” And although reform may sound like a good idea, the only winner in the kinds of special interest laws discussed in this post are the insurance companies who lobbied so effectively to get them. Doctors, patients, and society as a whole are not the intended beneficiaries, and these restrictions actually undermine a fundamental concept in the law: if you suffer injury or damages due to someone else’s negligence or willful misconduct, you are entitled to any and all compensation that is necessary to put you in the position you would be in, but for another’s wrongful conduct. In essence, this societal contract ensures that people are held responsible for their misconduct and that an innocent victim is compensated for the injuries he or she has suffered at the hands of another.
Special interest laws that are the result of intensive lobbying efforts like those that make medical malpractice claims harder to bring, more expensive, and provide less compensation to injured patients undermine the fundamental idea of fairness and accountability. These laws are ultimately aimed at lawyers and have been successful in making med mal cases too complicated and expensive to bring on behalf of clients. Unfortunately, people do not always see the serious harm caused by these restrictive special interest laws unless and until they or their loved ones are injured by a medical professional’s negligence.