Caps Reduce Patients' Harms and Losses To Just Another Cost Of Doing Business

Here is a reprint of a letter that appears in this morning's New York Times written by Patrick J. Kenneally (my boss):

Re “A System Breeding More Waste,” by David Leonhardt (Economic Scene column, Sept. 23):

Mr. Leonhardt’s article is a good-faith effort to discuss both sides of an emotional issue. It acknowledges the fact that a majority of wrongfully injured patients never seek compensation. That means that culpable doctors get away with medical negligence.

Under our system of justice no doctor is held to account for a “mistake,” but only for falling below the established standard of reasonable medical care — that is, being negligent.

Some believe that the most effective reform would be a cap on damages — an artificial limit on negligently injured patients’ compensation. No state that has imposed such limits, to my knowledge, has seen a reduction in medical negligence or even a meaningful reduction in doctors’ malpractice insurance premiums.

Saying to a child or any patient who, because of negligent medical care, sustains permanent brain damage that his or her inability to have a normal life should be “fairly” compensated with $250,000 or $500,000 (for noneconomic damages) reduces medical negligence to a determinable cost of doing business for insurance companies and negligent doctors. Such “reform” is unfair to patients. Patrick J. Kenneally

Chicago, Sept. 23, 2009

The writer is a personal injury lawyer.

Elderly Patients At Risk For Spinal Cord Injury During Dental Procedures

I have been retained to represent a 79 year old woman in a dental malpractice case. The woman visited her Chicago area periodontist to have a single dental implant placed. During the procedure it was necessary for the dentist to extract the tooth that would be replaced with the implant. She explained to me that during the extraction her head and neck were twisted and contorted with what she felt was considerable force. Nevertheless, after the procedure she felt fine. She got up from the chair and walked out of the office with her husband under her own power. They spent the rest of the afternoon shopping before heading home for a quiet evening of television. She had no sense that something had gone wrong during her dental visit.

The next morning, however, she was unable to move. She had completely lost the ability to move her arms and legs. She was taken via ambulance to the nearest emergency room where she was diagnosed with Central Cord Syndrome, an injury to the cervical (neck) area of the spinal cord. The injury tends to occur when the neck is extended (bent back) or flexed (bent forward) beyond its normal position. Hyperextension of the neck can result in CCS when the spinal cord is pinched between the front of the cervical vertebrae and the ligament on the back of the cervical vertebrae. The elderly, who often have degenerative changes in the neck to begin with, are particularly prone to this sort of injury. CCS usually causes extensive motor weakness that is generally worse in the arms than the legs. My client spent many months in therapy learning to use her limbs again. She can now walk and use her left arm and hand. However, she remains unable to use her right arm, a condition that is likely permanent.

Elderly dental patients should discuss this risk with their dentists and periodontists. Appropriate steps should be taken to ensure that the neck is not hyperextended or hyperflexed during procedures. Also, if the patient has a prior history of neck or back problems the dentist should be made aware. He or she may wish to screen the patient by ordering tests to determine the degree of risk involved.