Senator Bill Frist
U. S. Senate
Washington, D.C. 20510
July 9, 2003
Dear Senator Frist:
As a graduate of Princeton University and a medical Doctor, you know the meaning of the phrases ” in the nationís service,” and “first, do no harm.” The same physician, who volunteers in Africa to treat patients, is the leader of the U.S. Senate who, against massively contrary data, is pressing cruelly for legislation that would say to the worst wrongfully injured medical malpractice victims— no matter how outrageous the behavior that led to their total disability or other serious casualty: they will receive, under your bill, no more than a maximum of $250,000 for a lifetime of pain and suffering, while prohibiting the state trial judge from informing the jury about this arbitrary ceiling.
The medical malpractice crisis, as Business Week editorialized years ago, is malpractice. As a physician your first calling is prevention, and so true is that calling as a legislator. Here is what you know or should know:
1. Death and injury due to medical and hospital negligence, incompetence or worse is one of the nationís most preventable epidemics of violence. Your fellow physicians at the Harvard School of Public Health estimated that just in hospitals alone, apart from emergency rooms, about 80,000 people lose their lives annually due to such causes. Other official studies report hundreds of thousands of injuries yearly. As a practicing physician, you know that it only takes a minority of bad doctors, nursing homes, hospitals and other companies covered by this legislation to generate a wave of mayhem. Bad doctors are rarely disciplined. They give other good doctors nightmares in the same workplace and only a tiny minority of these casualties lead to a lawsuit. As the Harvard study concluded— it is not a matter of too many lawsuits, but of too few lawsuits. Neither justice nor compensation nor deterrence is available for those innocent Americans who die or suffer. This is one of several areas of the civil justice system that can be improved, instead of degraded.
What are you, the leader of the Senate, going to do about known ways to reduce this loss of life and remove physicians who should not be licensed to practice medicine? There are enough studies; it is time for Congressional action to act on an annual fatality toll in the U.S. larger than the number of lives lost in motor vehicle crashes, by fire and because of AIDS combined.
2. You know that the insurance industry does next to nothing about prevention, including an absence of experience loss rating. This industry engages in over-classification of physicians thereby reducing the pool of insureds per specialty and enabling the companies to gouge a few specialties whose outcry shifts attention from the industry to the innocent victims. If the auto insurers quadrupled their premiums, would you be taking away the rights of injured motorists or would you inquire about the premium gouging that has no basis in loss data? All the best data show that malpractice payouts are declining as insurance premiums have spiked, that states with caps on pain and suffering saw medium doctorsí malpractice insurance premiums rise faster than states without caps, that it is Californiaís later tougher rate regulation, not its earlier cruel cap, that has held rates below what they would have been. The second largest medical malpractice insurer in California, SCPIE, testified that the cap did not do the job. You and your allies are misrepresenting it did.
3. You know that a widely publicized major study appearing in the June 26, 2003 issue of the New England Journal of Medicine concluded that nearly half of all patients do not receive “the standard processes involved in healthcare in the United States.” This shocking indictment of the inadequate quality of delivered healthcare was described by the authors as posing “serious threats to the health of the American public. Strategies to reduce these deficits in care are warranted.” And your obsession is to take away rights from innocent victims of bad medical or hospital care?
What “strategies” are you pursuing to counter these documented “serious threats to the health of the American public?”
4. In the just released June 2003 issue of Research Activities published by the U.S. Department of Health and Human Services, a study described patient safety problems in hospitalized children who face “a 2-18 times greater risk of death than children that did not have such a problem.” This report by the Agency for Healthcare Research and Quality noted that a majority of birth trauma infants were “more likely to be black or Hispanic and to be born in institutions that had no residents on staff, had a lower percentage of beds in intensive care units, or had a lower volume of inpatient surgical procedures.”
What are you going to do about what this study called “long bone and skull fractures”?
5. You know that more than a few top insurance executives make $250,000 a week, every week, or $250,000 a fortnight, every fortnight, or $250,000 a month, every month, without any pain and suffering. See the August, 2003 issue of The Insurance Forum, for many names of these executives. (Twelve million dollars a year gives an executive $250,000 a week!). These insurance executive compensations come out of the same consumer premiums that verdicts and settlements do.
What are you going to do about the “out of control” “excessive” insurance mogulsí pay? Why first pick on a brain damaged infant or an immobilized adult due to malpractice?
6. Why are you pushing for federal pre-emption of state courts, judges and jurors without demonstrating in the slightest that they are unable, unwilling or incompetent to properly resolve these judicial conflicts? Have you even consulted state judges? I have spoken to numerous state judges. Not one believes that there are any grounds for the federal government to tie their hands and, without seeing, hearing or evaluating the evidence, impose an absentee one shoe fits all brand of injustice. (Most state judges were formerly business lawyers who, like any judge, have no trouble throwing out any “frivolous lawsuits” that you keep referring to without any documentation.)
Why are you so contemptuous of Tennesseeís judges and jurors that you believe the federal government should regulate them with federal power?
7. Apparently you believe in discriminatory price control. You want to control the contingent fee of plaintiff attorneys but not the large hourly fees of defense attorneys. As you know, plaintiff attorneys only receive compensation if they prevail for their client—it is as if doctors would only be paid if they cured their patients.
Why control attorneysí contingent prices for plaintiffs, but not control definite medical, hospital and insurance premium prices? Is there a bit of a bully lurking in the Senate leadershipís designs?
8. Your legislation, S.11, would impose many other federal controls over state courts, the historic jurisdiction for tort law cases, which have not been adequately publicized, so coarse are they. These include rigging the pool of expert witnesses to favor defendants, requiring minors to file suit before they become adults, capping punitive damages even for criminal negligence or worse (and there are cases where physicians have been jailed for outright criminal behavior), and even shielding manufacturers of medical products and drugs if they meet FDA standards, however obsolete or anemic these standards turn out to be.
9. It is well known that obstructing the innocent injured away from their full day in court is a periodic demonstration of cash register politics. As Senator Mitch McConnell and Senator John Ensign know, the PACs from all points of the compass send in their checks. But you are a doctor. You know better than anyone in your Party of the mistakes, negligence or worse in a profession, beset by many complex decisions and a minority of bad doctors (5.2 percent of doctors are responsible for 55 percent of malpractice payouts over time). Some of these human casualties are so preventable that their recurrence without incurring professional disciplinary action is, as one doctor put it, “mind-boggling.” You know or should know that whenever investment and interest incomes decline (as in the past three years in the stock market) the insurance companies dust off their old strategy to divide the physicians from their patients (because the companies know that many physicians just donít want to be suable at all) and steer them to state legislatures and Congress. What the insurance companies are not telling the public is that were all doctors to pay the same premium, the average yearly cost would be under $10,000 a yearó about a third of what a seasoned receptionist receives.
What are you going to do about the manipulation and largely unregulated actuarial and pricing practices of this industry so that Americans retain their full 7th amendment rights under our Constitution?
Documentation for many of the above-noted assertions and a large storehouse of accurate data and authoritative studies can be accessed at www.citizen.org and www.centerjd.org and www.consumerwatchdog.org.
Please reconsider your position in accord with the finest medical ethics and responsibilities.
P.O. Box 19312
Washington, D.C. 20036