Taken and Shaken

Week of February 26, 2003

More Legalese
A higher standard: I wish to address one misconception from the otherwise excellent article written by Geri L. Dreiling ["You Don't Know Dick," February 12]. She writes, "If a doctor amputated the wrong leg but didn't mean to, there'd be no punitive damages -- if [Representative Richard] Byrd's bill becomes law." That assertion is misleading. In the amputation case she put forward, evidence that the doctor did not mean to amputate the leg would not support an award of punitive damages, even under current law in medical-malpractice cases. Under Missouri law, a plaintiff must show that the conduct of the defendant -- a doctor, in this case -- was willful, wanton and malicious to obtain an award of punitive damages. What Byrd's proposed legislation does is change the standard of proof from a preponderance of evidence to clear and convincing evidence. A preponderance of evidence means an assertion is more likely than not. Clear and convincing evidence is a standard higher than a preponderance of evidence but not as high as beyond a reasonable doubt, the standard in a criminal case. Such a change would make it more difficult to assess the penalty of punitive damages in cases where a doctor acted with willful, wanton and malicious conduct to harm a patient. The legislation proposed by Byrd and the others shifts the risk of harm due to a doctor's acts from the medical community, where it belongs, to the injured patient. As a society, do we want doctors to have limited responsibility for the harm they cause to their patients? I think not.
Lawrence D. Leip
Jefferson City

Bad things happen even when there's no negligence: As a physician, I read your article on Representative Byrd's sponsorship of tort-reform legislation with great interest. I was disappointed. By focusing on Byrd's credibility, the most important issues regarding the medical liability crisis were not addressed. Your article suggests that patients will be harmed by tort-reform legislation. In fact, patients will be harmed in far more serious ways and in much greater numbers should the current situation be allowed to continue. Patient access to care is being threatened, particularly in high-risk areas such as obstetrics and gynecology, neurosurgery and trauma surgery. Currently, malpractice rates are rising at an unacceptable rate. Rates in high-risk specialties that were running $20,000 to $30,000 a year are now in excess of $100,000. For most practitioners there is no way to make up for these increased expenses. Medicare and insurance companies continue to pay less for physician services. This unfavorable economic equation has forced physicians to close their practices or consider relocating. The situation is worse in other states, and the same problems are likely to occur in Missouri.... Tort reform is good for the vast majority of patients. Bad outcomes occur in medicine without negligence. The system is not set up to provide compensation where no malpractice has occurred.
Fred Pugliano, MD, FACS
St. Louis

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