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Chris Nace
Chris Nace
Attorney • (202) 930-0292

Tort "Reform" Would Add Insult to Injury

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The Washington Post ran a story today about a young girl who contracted a rare infection that could have had catastrophic results had not been diagnosed when it was. The story discussed how it was only after several attempts were made that the rare disease was properly diagnosed:

She was no better in the morning, even though a second antibiotic had been added. An ear, nose and throat specialist told the Dawns that if Brooke did not improve, surgery would probably be necessary to drain a possible abscess.

The next day was Halloween, Brooke’s favorite holiday, but she showed no interest in any of the hospital-sponsored festivities, further alarming her parents. At this point, her mother said, Brooke had stopped eating and drank little. Her neck was so painful that the only thing that helped was packing it in ice. At the Dawns’ request, an infectious-disease specialist was called in; he agreed it was a probable infection and adjusted her medications.

The drugs seemed to help, and that evening Brooke started to feel better. But her parents’ relief was short-lived. In the morning, she awoke with a red rash covering her legs and groin. Worried that she might be allergic to one of the antibiotics, as she is to penicillin, doctors prescribed an antihistamine to counteract the possible allergy.

The rash got worse, spreading to her hands and feet, which began to swell. Brooke’s lips turned red, as did her eyes. Doctors worried she was developing Stevens-Johnson syndrome, a life-threatening drug allergy that can cause a similar rash and redness.

Concerned that a throat abscess might have become walled off, preventing antibiotics from reaching it, the ENT specialist recommended surgery.

By that point, the fifth day of Brooke’s hospitalization, the infectious-disease specialist was reconsidering. Suspicious of the red eyes and red lips, which are not typically associated with a drug allergy, he decided she might have Kawasaki disease, an unusual cardiac problem.

Was it medical negligence to fail to diagnose the disease? That’s a good question, but at least one physician believes it should have been caught sooner:

The infectious disease specialist in Brooke’s case declined to be interviewed, but Candace Gibbin, a pediatric cardiologist who specializes in treating Kawasaki at Johns Hopkins Hospital, said that drug allergy is "a very common red herring." The disease, she added, is often missed by physicians, despite guidelines to improve its detection promulgated in 2004 by the American Heart Association. Those guidelines say that doctors should consider Kawasaki in children with an unexplained fever lasting five days, when accompanied by other symptoms including red eyes without discharge, red lips or mouth, a rash and a swollen lymph node in the neck.

"Red eyes and red lips are an unmistakable sign of Kawasaki disease," Gibbin said.

"The reason people miss the diagnosis is that they don’t sit down and put the signs and symptoms together," Gibbin said. "You have to have somebody leading the wagon train who can come in and synthesize what is going on."

But even more frightening is that the hospital and physicians almost discharged young Brooke without a diagnosis:

That night, after she seemed unable to move her neck, Brooke’s parents took her to an area emergency room. A CT scan showed a swollen lymph node in her neck and an infection behind her throat. Doctors gave her intravenous antibiotics and told her parents she might have nicked the back of her throat with a sharp straw. At 2 a.m. they told the Dawns to take Brooke home.

"I pitched a fit," said Dawn, a former hospital chief financial officer who has many relatives who are physicians. Brooke, she insisted, was too sick to be discharged. The little girl was admitted.

Not all parents who take their kids to the ER are former hospital administrators or have relatives who are physicians. Fortunately for Brooke, her mom "pitched a fit" and got her little girl admitted.

Let’s not talk about whether there was negligence in this case. Let’s assume, though, that Brooke had been discharged and was not eventually diagnosed. The results could have been tragic.

And if tort "reform" is passed, Brooke and her parents might never have been able to take their case to court.

The fact is that medical malpractice happens. In fact, there are 98,000 preventable deaths each year from medical negligence. The cost of malpractice litigation–often blamed for the high cost of heath care–amounts to no more than 1% of the total cost of healthcare in the United States.

Shouldn’t those responsible for the 98,000 unnecessary deaths be held responsible in a court of law? Shouldn’t the families of those 98,000 victims have the option–just the option–to bring their case before a jury of their peers? Isn’t the right to trial by jury–a right so American that it was included in the bill of rights–worth 1% of healthcare costs when health insurance companies are one of the most profitable businesses on the planet?

When the idea of tort "reform" is floated during the healthcare debate, ask yourself if victims of medical negligence–which takes 98,000 lives a year–shouldn’t be allowed to have their day in court. Let’s not sacrifice those who have already be victimized so that insurance companies can hold onto 1% more in profits.

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  1. Mike Bryant says:
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    This post is the exact real life example that they don’t want to talk about. It’s easier to stay away front he real story. Very powerful example of why responsibility and a system for the consumer is safer and actually saves money in the long run. But when you come down to it, the tort reform is really only to run form responsibility. They want to create a cost benefit analysis on human lives so that the Insurance companies can manage the risk. They know the deaths happen they know they are responsible, but it’s easier to attack lawyers and make numbers up for them. Nice work on pointing out the real story.