With all the recent controversy surrounding Obamacare, several aspects of the new law are not getting much press. Few realize that Obamacare was based on recommendations made years ago by the Hertage Foundation, a conservative Republican think tank, that wanted people to take responsibility for their health care costs by mandating that they enroll in a health insurance program. Secondly, Obamacare includes tort reform, putting limits on damages awarded in medical malpractice lawsuits.
The pundits don’t talk much about Obamacare’s tort reform, because most people including myself, figure that they will never be in the position of suing your doctor. But I was certainly wrong about that. And what I learned was a real eye-opener. Here is my story:
In early 2009, I felt a lump in my right breast and immediately scheduled a visit with Dr. McNaney-Flint of Stuart, who had been my gynecologist for more than 20 years. After an examination, she declared that the lump was not cancerous. The ultrasound, that was done on February 3, 2009 at radiology imaging in Fort Pierce, was normal, she said, and with great relief I left her office believing I dodged a big bullet. But as time went on, the lump grew and I became more concerned. I saw Dr. McNaney-Flint two more times that year and each time she assured me everything was fine.
By the end of the year, I scheduled another mammogram even though my regular appointment was two months away. That mammogram was anything but normal. I had a large malignant tumor that spread to my lymph nodes. Dr. Denise Sanderson, who performed the double mastectomy, said the tumor was one of the biggest she had ever seen and she was unable to get clear margins, which meant cancer likely was in some tissue. Eight of the 12 lymph nodes she remove the cancerous. A tough regiment of chemotherapy followed, leaving me nauseated, bald and tired. Radiation was worse than I expected. Thirty-two days of intense treatments left a painful burn that went through the skin of my right chest.
Despite all that, I feel fortunate. The cancer had not metastasized. I had the financial resources for all the treatments, tests and appointments. Since I own my own business, I do not have to worry about being penalized for losing work. I had the support my husband, my best friend, my family and hundreds of others who have my hand through the ordeal. Still, I felt betrayed by the doctors misdiagnosed me.
I decided to sue Dr. McNaney-Flint and Radiology Imaging for malpractice. The suitwasn’t only about the money. I just didn’t want anyone else to go through what I just endured. And to make matters worse, when I underwent reconstruction surgery in November 2010, the surgeon found more cancer in a lymph node. I once again had to make the trek to Palm Beach Cancer Institute for a second round of chemotherapy and radiation treatments.
I put the malpractice case on hold until I knew I had the energy to lunch what I knew would be another test of endurance and determination. Just as I was shocked to learn I had stage 3 cancer, I was almost as disturbed about malpractice laws in the state of Florida– tort reform laws that are similar to those in Obamacare. Statute of limitations for malpractice is two years so I knew I was now on a tight deadline to get an attorney and get the suit filed in a timely manner. Secondly, there is a $500,000 cap on non economic damages, which means it was unlikely there would be any large sums involved in my case. And finally many doctors are “judgment proof” which means that their personal assets are set-aside in trusts or in family members names so they cannot be attached to a verdict or settlement.
My attorney explained that any money recovered would likely be from the physicians malpractice insurance, which also is limited. I decided to go ahead with the suit, even though I knew it would mean lawyers prying not only into my medical records, but every other aspect of my life that could affect the case. I spent weeks tracking down documents they subpoenaed–everything for my college diplomato the amount of money spent on the wigs I needed. Even before the actual suit was filed, I had to give an “unsworn statement” to the doctors attorneys. Under not so gentle questioning, I had to relive what I have been through the past year–the surgeries, the treatments and emotional toll it had on me, as well as my family and friends.
Shortly after that session, Dr. McNaney-Flint decided to settle. We came to an agreement quickly, but the case against radiology imaging dragged on for more than a year. More subpoenas, more record gathering and then another lengthydisposition, which at times was almost as brutal as the cancer treatments. I watched as the radiologist where deposed — irritated that none seemed the least bit remorseful. Earlier this year, we all went to mediation, and after hours of haggling, decided to settle with Dr. Lloyd Heilman the radiologist who reviewed the ultrasound on my right breast on February 3, 2009. Despite the palpable lump, he said there was no evidence of cancer. “Benign finding recommended yearly screening mammography” was what he wrote on his report. How wrong he was.
I’m glad it was over–even though the settlement cannot begin to compensate me for the pain, anguish anxiety caused by the misdiagnosis. I now have a blood test every three months and a PET scan every six months to make sure the cancer has not returned. And the case did not end with the settlement.
My attorney got her 30% plus expenses and the referring attorney got his 10%. And then I learned the state of Florida let someone else take a share of what was left. Blue Cross Blue Shield placed a lien on the money, because it claimed it had to pay for treatments that might not have been needed if I had been diagnosed properly. They wanted more than $200,000, but settled for less. Most of what was left was donated to Learn to Read of St. Lucie County.
The constitutionality of putting caps on malpractice awards is now pending before the Florida Supreme Court. In fact, a circuit judge in this district has also ruled there should be no caps on malpractice damages in a case which coincidentally involved the same gynecologist that settled with me.
Republican legislators, like a majority of Florida legislators, are consistently big proponents of tort reform. So I’m surprised that so many referred to Obamacare as socialism. Here is a plan that provides monetary protection for doctors who are being sued. It also requires those who can afford health insurance to pay for it so taxpayers and hospitals won’t be on the hook for emergency room and other hospital expenses for the uninsured. And the state of Florida lets big business the one step further by allowing insurance companies to place liens on what damages are awarded.
So here’s my advice. If you question the doctors diagnosis, get a second opinion. If you think we need more tort reform for malpractice, think again. A devastating misdiagnosis could happen to you. And if you think Obamacare is just another one of our presidents socialistic plots, remember where the law originated—in meetings held in 1989 by some of our country’s most conservative leaders.