Eleven years ago our son, Steven, was made blind and brain damaged by medical malpractice. Then he became a victim a second time of a law in California known as MICRA–the Medical Injury Compensation Reform Act of 1975. We soon learned that justice, which is supposed to be blind, was instead under this law rigged so that my son was literally robbed blind.
Last week the President said, “If you’re looking for solutions, look at states which have done a good job of helping the patient out. California is one example.” Mr. President, if you think California’s law is an example for the nation, I say look at Steven Olsen.
The President said the California law is fair. And our own Senator Dianne Feinstein said it’s balanced. With all due respect, that’s easy for them to say. I challenge the President and Senator, here and now, to bring forth one–just one–one solitary victim of malpractice who will agree with them that the California system is fair and balanced.
Steven was two years old when he fell on a twig in the woods, which penetrated to his sinus area. He was operated on the same day and was discharged. When he began to show signs of fever and lethargy, we took him back to the hospital. We asked the doctors to scan Steven because he was rubbing his head. They told us there was no need to scan him. The scan we were asking for, which the President derided last week as “defensive medicine”, would have cost about eight hundred dollars and would have detected the brain abscess which eventually injured my son’s brain.
Mr. President, my son could have used the “defensive medicine” you criticized. For it was undisputed in our case that had Steven received the $800.00 scan we requested, he would be perfectly normal today. Mr. President, you still think “defensive medicine” is bad medicine, I say look at Steven Olsen.
Stevne’s injury, which left him blind and brain damaged, was caused by repeated negligent acts and incompetence. Repeated negligent acts and incompetence. And those aren’t my words–they’re the exact words of the California Medical Board.
At trial, a jury of our peers had an opportunity to hear both sides, and decided that because of the severity of his injury and the extreme negligence of the malpractice, that Steven’s “pain and suffering” should be 7 million dollars. As soon as the jury left, the defendant asked the judge to lower the award to the 1975 “one size fits all” cap of $250,000. When he heard of this, our jury foreman, Mr. Thomas Kearns, wrote to the newspaper:
California, bow your head in shame.
1) Your medical care system has failed Steven Olsen, through inattention or pressure to avoid costly, but necessary tests.
2) Your legislative system has failed Steven Olsen, bowing to lobbyists of the powerful California Medical Association and the insurance industry, your legislature has enacted an ill-conceived and wrongful law, and
3) Your judicial system has failed Steven Olsen, by acceding to this tilting of the scales of justice by the legislature for the benefit of two special interest groups; medical practitioners and insurance companies
Mr. President, last week you said, “this problem is caused by too many lawsuits.” So in your twisted logic, to you victims of medical malpractice are not the reason for reform, but rather the target of attack by you so the medical and insurance lobbies can relieve themselves from responsibility for the deaths and injuries they cause? To you the problem is not “how are we going to reduce deaths and injuries caused by negligent or incompetent doctors and hospitals?” but rather “how are we going to stop or impede victims of malpractice from suing the perpetrators of their injuries.” If this is “compassionate conservatism”, then I’d hate to see the alternative. Mr. President, if you think the problem with the system are the victims of malpractice itself, I say look at Steven Olsen.
Now those like the President and Senator Feinstein who favor caps on pain-and-suffering like to say that victims, like Steven–their “economic” damages are covered. However, legal fees and costs cannot be recovered as part of your “economic” loss, and in Steven’s case it cost him $914,000 to bring his case to court. But what are your “economic” damages if you’re blinded, like Steven? A white cane is one example. As you can see, “economic” damages is merely money to keep his damaged body alive. And since this money is for future medical bills, his award is essentially given right back to the same system that damaged him.
Mr. President, you said, “the system looks like a giant lottery.” And to you, Mr. President, I assure you, my son never purchased a ticket for this lottery. And if you think malpractice victims are somehow winners of some kind of lottery, I say look at Steven Olsen.
So the truth is that California’s malpractice law has failed innocent victims, consumers, and taxpayers. Under this law people are victimized twice–once by the wrongdoer and again by the laws that deny them their right to hold the wrongdoer fully accountable in court. And this law is regressive by hurting the most seriously injured victims–those who are permanently or catastrophically injured by doctor negligence.
And Dr. Donald Palmisano, president-elect of the American Medical Association, you should be ashamed, for last week on the PBS Newshour you falsely said Steven was awarded 42 million dollars–inflating his compensation by 2,000%–in an attempt to blame victims, and the juries that bring them justice, for runaway malpractice premiums. I invite the doctor to read Steven’s final judgment that I have right here–and publicly apologize.
And finally, President Bush and Senator Feinstein should be ashamed for recommending a national policy that tramples on the seventh amendment–limiting my son and others like him to $250,000 for a lifetime of pain and suffering, regardless of a jury’s judgment, while allowing insurance company CEOs to make millions annually without any accountability. And also believing that in every instance, without exception, and without regard to age, severity of injury, or circumstance, that one’s compensation for pain-and-suffering should be capped at $250,000. We believe otherwise. We believe it’s immoral.