Medical Malpractice “Reform”: A Bad Idea Then, And Now: Part Two of Two

In my previous post on this subject, I noted how President Barack Obama had raised the subject of “medical malpractice reform” in his State of The Union speech last week, and of how a Massachusetts medical malpractice case that just settled this week, illustrates how severe and unjust typical “tort reform” measures would have been in this case.

Just how bad was the medical malpractice alleged in this case? Consider these facts:

• Rebecca was prescribed Seroquel – a powerful antipsychotic commonly used in very serious, and primarily obvious, cases of psychosis.
• She was also prescribed Clonidine – a powerful sedative and anxiolytic • She was also prescribed Depakote – a powerful anti-seizure medication.

The amount of Clonidine alone was enough to kill Rebecca, never mind these other powerful drugs. None of these medications is approved by the FDA for the treatment of psychiatric issues in children as young as Rebecca was. All of these drugs were prescribed by Dr. Kayoko Kifuji “off-label.”

Again, according to court documents, Dr. Kifuji diagnosed a 2 ½ year-old child as “bi-polar”, and prescribed all of these three powerful psychoactive medications, at her very first meeting with Rebecca. According to court documents, Dr. Kifuji made no inquiries whatsoever to school teachers or school nurses concerning the child’s alleged behavior, her environment or other non-medical factors concerning her home life. To fail to conduct such an inquiry before diagnosing a 2 year-old child as “bi-polar” after one appointment, and flooding her with three powerful anti-psychotic and psychoactive medications, is beyond any rationale understanding. Even more shocking, people outside the family who were in a position to observe Rebecca, such as her teachers, reported Rebecca’s lethargic, “floppy doll” like state to Dr. Kifuji’s. Her response? She did nothing to change these medications, did not bring Rebecca in again for re-examination, and told the foster parents that they could adjust the medications up or down – on their own – “as needed.”

Not long afterward, Rebecca Riley died from toxic levels of these medications in her system. For me or most professionals in the legal or medical field to comprehend how a physician could diagnose a 2 ½ year old child as “bi-polar” after just one appointment, make no inquiries whatsoever of school teachers or nurses overseeing the child, and fill her full of three powerful psycho-active medications that were not even FDA-approved for use with very young children, is beyond description.

Attorneys representing the estate of Rebecca Riley announced late last month that they have settled their medical malpractice lawsuit against Dr. Kifuji, acting in her capacity as a staff psychiatrist at Tufts Medical Center, for $2.5 million. Proceeds from the settlement will be distributed to Rebecca’s two surviving siblings, mentioned above. The $2.5 million is the maximum provided by Kifuji’s medical malpractice policy. Any amount above that figure would have had to come from Kifuji’s personal assets, which were reported to be minimal. Officials from Tufts Medical Center said that they decided to “spare Rebecca’s siblings more heartache” (which would result from a jury trial.) Translation, in my opinion as a Massachusetts medical malpractice lawyer: “We know our doctor botched this child’s care beyond words, and we’re not going to risk even higher damages by putting this case in front of a jury.”

If “medical malpractice reform” of the kind usually talked about had been enacted in Massachusetts when this case was brought, it probably would have capped any damages flowing from this case, at a maximum of $500,000. That’s it. $500,000 for the suffering and death of a 4 year-old child, because of the actions of this doctor. I don’t know who in any good conscience could say that such a result would be fair, or wise, or even decent. And the worst part is, that there are hundreds of cases of medical malpractice, as egregious as this and even wore, that occur in Massachusetts and the United States every year. The framers of our Constitution assured our citizens the right to have their civil case heard by a jury, without onerous and unjust limitations. This right lies at the core of our civil justice system. I’ve warned previously, as have organizations like the American Association for Justice (previously “ATLA”): Once these civil justice rights are taken away, they will not be restored. While theoretically possible to restore these rights, the practical result is that once “reform” like this passes, they will be gone for good.

Don’t believe it when you hear that medical malpractice “reform”, or other versions of “tort reform”, is a “good idea.” It isn’t. And you just may find out how wrong you are, if and when you (or someone you care about) are injured and you want to sue for damages. Only then it will be too late – for you and others.

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