Good Verdict Bad Law

A former cop in Terre Haute Indiana, Jeffrey W. Davis, just won a $2.5 million medical malpractice verdict. But, the judge has no choice and must take half of the verdict away.

Davis was 35 in 2004 when he went to see Dr. John Morse complaining of rectal bleeding. Apparently, Dr. Morse didn’t think too much of the complaint and wasn’t practicing so-called defensive medicine that day. Davis got very little work up for his complaint. But, if a doctor can verify unexplained rectal bleeding, the standard of care requires him to order a colonoscopy, sooner than later, regardless of the relative youth of the patient. In 2006, Davis went to another doctor who found widespread colon cancer. Davis is now 42 and is believed to have about a year to live.

Indiana capped medical malpractice damages in 1975 at $410,000 and has raised the cap periodically to its present $1.25 million. Even using the phony CPI numbers put out by the BLS, rather than an index of health care inflation to account for the plaintiff’s future medical care costs, the cap should be over $2 million by now to have the same purchasing power as the original cap.

But, the legislature never admits the real reason it would overturn centuries of common law, which never limited the amount of damages a jury could award because a tortfeasor can cause unlimited damages. If you believe that government consists of robbers and thugs who act only in their own self interest, then you already know that a legislature that changes centuries of law does so only because it wants to help its friends, who in turn help keep the robbers, I mean legislators, in power. Sadly, many (most?) people think that government consists of angels who only want to make things better for us mere mortals.

One of the best ways for a government to fool the citizenry is to create a crisis so seemingly massive and beyond an individual’s control that people believe only the government can do something to help solve the problem. Trial lawyers have been a favorite bogey man of the corporate world, and the insurance industry in particular, for decades. Trial lawyers are, after all, the ones who hale corporate defendants and other wealthy elite into court, and it is the court system that is the most difficult for the elite to control. Politicians are easy to purchase but juries consist of 12 ordinary folks and ordinary folks don’t often take kindly to greed and bribery. The only thing the elites can reasonably do to protect themselves is to purchase politicians who will reign in the courts.

The federal government had already made doctors rich through Medicare and Medicaid, providing payment for patients the medical profession had always treated pro bono. Doctors who were previously just members of the middle class, have to protect their wealth now through malpractice insurance. But the courts have made the insurance companies pay victims the full value of injuries caused by medical malpractice. So, the insurance industry created a crisis to scare people into believing that doctors would soon stop practicing medicine unless the government “did something.” At least in Georgia, caps only lasted five years. A unanimous Georgia Supreme Court struck the caps down last year as patently unconstitutional. We can pray for the citizens of Indiana.

Glenn L. Goodhart, M.D., J.D.