Faces of Medical Malpractice

Former Indiana Insurance Lobbyist Had a Change of Heart

Frank Cornelius realized a severe cap on malpractice compensation benefits insurers - not patients - when it was too late.

"Crushed by My Own Reform"
By Frank Cornelius
New York Times, October 7, 1994

About the Author: Frank Cornelius was a former lobbyist whose clients included the Insurance Institute of Indiana. He passed away in 1995.

In 1975, I helped persuade the Indiana Legislature to pass what was acclaimed as a pioneering reform of the medical malpractice laws: a $500,000 cap on damage awards, and elimination of all damages for pain and suffering. I argued successfully that such limits would reduce health care costs and encourage physicians to stay in Indiana—the same sort of arguments that now underpin the medical industry's call for national malpractice reform.

Today, from my wheelchair, I rue that accomplishment. Here is my story.

On Feb. 22, 1989, I underwent routine arthroscopic surgery after injuring my left knee in a fall. The day I left the hospital, I experienced a great deal of pain and called the surgeon several times. He called back the next day and told my wife to get me a bedpan. He then left on a skiing trip. I sought out another surgeon, who immediately diagnosed my condition as reflex sympathetic dystrophy—a degenerative nervous disorder brought on by trauma or infection, often during surgery.

A few months later, when a physical therapist improperly read the instructions on a medical device, I received a tremendous current of electricity through my left leg. This seriously complicated my condition.

In August 1990, another physician proposed a medical procedure, but used the wrong instrument; that left me with several holes in the vena cava, the main vein from the legs to the heart. I would have bled to death in my room if my wife had not come to see me that evening and called for help. As another physician tried to save my life, he punctured my left lung.

The cost of this cascading series of medical debacles is painful to tally:

• I am confined to a wheelchair and need a respirator to keep breathing. I have not been able to work.

• I have continuous physical pain in my legs and feet, prompting my doctor to hook me up to an apparatus that drips morphine. My pain used to rate a 10 on a scale of 1 to 10. Now it's about a 4.

• Twice, I have received last rites from my church.

• My marriage is ending, and the emotional fallout on our five children has been difficult to witness, to say the least.

• At the age of 49, I am told that I have less than two years to live.

My medical expenses and lost wages, projected to retirement age if I should live that long, come to more than $5 million. Claims against the hospital and physical therapist have been settled for a total of $500,000—the limit on damages for a single incident of malpractice. The Legislature has since raised that cap to $750,000, and I may be able to collect some extra damages if I can sue those responsible for the August 1990 incident that nearly killed me. But apparently because of bureaucratic inertia, the state medical review panel that certifies such claims has yet to act on mine.

The kicker, of course, is that I fought to enact the very law that limits my compensation. All my suffering might have been worthwhile, on some cosmic scale, if the law had accomplished its stated purpose. But it hasn't.

Indiana's health care costs increased 139.4 percent from 1980 to 1990—just about the national average. The state ranked 32d in per capita health care spending in 1990—the same as in 1980.

It's understandable that the damage cap has done nothing to curb health care spending; the two have almost nothing to do with each other. In 1992, the Congressional Budget Office reported that medical malpractice litigation accounted for less than 1 percent of total health care spending. I doubt that the percentage in Indiana is much different.

Proponents of Indiana's damage cap argue that doctors here pay less for malpractice insurance than their colleagues in other states. What they don't say is that malpractice premiums are artificially low because insurers need to offer only $100,000 of coverage. Negligently injured patients who are entitled to more than $100,000 must look to Indiana's state-run excess compensation fund.

Because that fund is supported by a surcharge on doctors, the true cost of malpractice insurance in Indiana can be calculated only by adding premiums and surcharges together. And the surcharge for the compensation fund has ballooned.

Doctors and insurers have spent millions propagating the myth that America is awash in unjustified malpractice suits and crazy jury verdicts. And apparently they have captured the attention of the President and Congress: malpractice damage caps were part of many health care measures in Congress this year, and they are sure to be back when the issue resurfaces in the next session.

The prospect that these "reforms" will be enacted is frightening. Make no mistake, damage caps are arbitrary, wholly disregarding the nature of the injury and the pain experienced by the plaintiff. They make it harder to seek and recover compensation for medical injuries; extend unwarranted special protection to the medical industry; and remove the only effective deterrent to negligent medical care, since the medical profession has never done an effective job of disciplining negligent doctors.

Medical negligence cannot be reduced simply by restricting consumers' legal rights. That will happen only when the medical industry begins to effectively police its own. I don't expect to live to see that day.