• The bill you lobby for may be hazardous to your health Thursday, November 12, 2009

    If you’re lobbyist for a bill that imposes limits on damage awards in medical negligence cases, you probably think “tort reform” is a good idea.  But if you’re a victim of medical negligence, you may wonder how the money an insurance company saves is going to meet your needs.

    And if you’re both those people?  Then you’re the victim of a bad cosmic joke, thanks to a law you helped pass.

    We were reminded this week of the story of Frank Cornelius, the victim of medical negligence that left him wheelchair-bound, on a respirator, unable to work and in constant pain.  His economic damages, in lost wages and medical expenses, were estimated at more than $5 million.  But he received a settlement of $500,000 under a law he himself had pushed for as a lobbyist for the Insurance Institute of Indiana.

    It surely seemed like a good idea at the time.

    Frank Cornelius told his story in a New York Times op-ed piece, “Crushed by My Own Reform,” published on October 7, 1994.

    In 1975, I helped persuade the Indiana Legislature to pass what was acclaimed as a pioneering reform of the medical malpractice laws: a $500,000 cap on damage awards, and elimination for all damages for pain and suffering.  I argued successfully that such limits would reduce health care costs and encourage physicians to stay in Indiana — the same sort of arguments that now underpin the medical industry’s call for national malpractice reform.

    Today, from my wheelchair, I rue that accomplishment.

    Cornelius was 43 years old when he injured his left knee in a fall in 1988.  After routine arthroscopic surgery, he was diagnosed with reflex sympathetic dystrophy, a painful degenerative nervous disorder that can be brought on by surgery.

    Frank Cornelius NY Times op-edThere was no allegation that Cornelius’ condition was the result of medical negligence.  But the condition was made drastically worse by not one, not two, but three later incidents of negligence.

    A few months after the initial diagnosis, Cornelius said “when a physical therapist improperly read the instructions on a medical device, I received a tremendous current of electricity through my left leg.  This seriously complicated my condition.”

    In August 1990, another physician used the wrong instrument during a medical procedure that left Cornelius with several holes in the main vein from the legs to the heart.  “I would have bled to death in my room if my wife had not come to see me that evening and called for help,” Cornelius said.  And then, “as another physician tried to save my life, he punctured my left lung.”

    Cornelius’ pain in his legs and feet was so severe doctors hooked him up to a morphine drip, in his Times commentary he said he had twice received last rites from his church.

    I fought to enact the very law that limits my compensation.  All my suffering might have been worthwhile, on some cosmic scale, if the law had accomplished its stated purpose.  But it hasn’t.

    Cornelius went on to say Indiana’s health care costs had increased at the national average during the 1980s, and that the state’s national ranking in per-capita health care spending was the same in 1990 as it had been in 1980.  The cap on medical negligence awards had made no difference.

    “It’s understandable that the damage cap has done nothing to curb health care spending,” Cornelius wrote.  “The two have almost nothing to do with each other.”

    Make no mistake, damage caps are arbitrary, wholly disregarding the nature of the injury and the pain esperienced by the plaintiff.  They make it harder to seek and recover compensation for medical injuries; extend unwarranted special protection to the medical industry; and remove the only effective deterrent to negligent medical care, since the medical profession has never done an effective job of disciplining negligent doctors.

    Medical negligence cannot be reduced simply by restricting consumers’ legal rights.  That will happen only when the medical industry begins to effectively police its own.  I don’t expect to live to see that day.

    He didn’t.  Less that five months after his commentary was published, Frank Cornelius died. He intentionally overdosed on morphine.  By then, Medicaid would no longer cover the device that provided him with the morphine.

    The story of Frank Cornelius serves as a reminder:  the debate over capping medical negligence damages is not just an exercise in determining how much money would be saved by insurance companies and physicians.  There are also real victims with real injuries who aren’t fully compensated under a cap.

    J.G. Preston

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