Why Is It That Tort Reformers Can’t Shoot Straight With the Public?


Experienced trial lawyers – heck, people with experience in life – know that when people have a valid point to make they don’t have any reason to misrepresent facts.

So when Justin Owen of Tennessee Center for Policy Research talks about the need for tort reform, you would think he would make an effort to state facts.  Real facts.  Facts presented in a non-misleading way.

And you would think that to the extent that he stated a fact he would not leap or attempt to cause another to leap to a conclusion not reasonably supported by the fact.

You would think.

And you would be wrong.  Dead wrong.  

Justin’s op-ed piece in the February 28, 2011 Tennessean is filled with misstatements designed to lead people to conclusions that are unsupported by the misstatements,  even if those misstatements happen to be correct.

Here are a couple that are easy to demonstrate with just a of couple hours work.

Justin:  "Forty-two counties lack an ob/gyn, which contributes to high infant mortality, while a staggering 47 counties do not have an emergency room physician."

First, the emergency room statistic.  This website has data on every licensed hospital in Tennessee except federal hospitals.  Pull up a county at random.  Any county.  You might hit one of the counties in Tennessee that do not have a hospital, such as Chester, Grainger, Grundy, Jackson, Lake and some10 other counties.  These counties don’t have a hospital, so they don’t have an emergency room.   I trust that Justin would agree that when a county doesn’t have a hospital the fact that it doesn’t have an emergency room and therefore no emergency room physician is not related to a civil justice system that permits juries to hold negligent healthcare providers accountable for their actions.  I trust he would – but he might not.  

I do not know if these 15 counties are included in Justin’s  list of 47 counties with out an emergency room physician.  If they are, his number is misleading.

How about the other counties?  Every single county that had a hospital had an emergency room. Every single county.  

And,  every single hospital with an emergency room had a doctor available to  the emergency room.  How do I know that?  First, I am alive.  That is, I know enough about life to know that hospitals cannot run an emergency room without a doctor.  To be sure, there are physician extenders who can practice within certain parameters set by doctors, but every single emergency room has a doctor available who supervises the activities in the emergency room.

Second, I looked at Page 37 of the report on the website referenced above.  On Page 36 of each report on each hospital there is data about emergency room treatment.  On Page 37 there is data about the health professionals who work in the emergency room.  And in every hospital with an emergency room there is a doctor who is available to the emergency room.  Note:  it is possible I missed one.  There are 95 counties in Tennessee.

Now,  there are  many rural hospitals which do not have board-certified or even board-eligible emergency room doctors working in emergency rooms 24 hours per day.  And if Justin had said that 47 counties did not have a board-certified or board-eligible ER doctor he might be right- I did not count the number of counties who fall in that category.  

But that is not what he said.  He said that "47 hospitals do not have an emergency room physician." He did not qualify that statement in any way.  And that is simply wrong or, at best, misleading.

Now, Overton County is one of those counties without a board-certified or board-eligible ER doctor.  Overton County has about 21,000 people.  It has one hospital that, in 2009,  had its ER  managed by Emergency Coverage Corporation.   It has no board-certified or board-eligible ER doctors, but the hospital told the State of Tennessee that on a normal day it had 10 doctors with a declared specialty in ER medicine in the hospital and one with a declared specialty of ER medicine in the ER.  Plus, it had another eight doctors available to the ER.  

How did Justin classify the hospital in Overton County?

Of course, Justin did not even attempt to link a civil justice system that holds people accountable for their errors to the lack of doctors in some emergency rooms in some counties.  He cannot.  But that is the conclusion he wants readers to draw, and he hopes people make this leap without the benefit of accurate facts.

Now, on the point of OBs.  I am not going to count which hospitals have OB units and which do not, although all of that data is on the same reports mentioned above (see page 14).   Time does not permit me to do so.  I will, however,  make a few obvious points that  show problems with  Justin’s statements.

First, there are 15 counties with no hospitals.  (It is possible there are a few more – I was in a hurry and could have missed one or two.)  No hospital.  No OB unit.  No OB.  No surprise.

Second, some rural counties that have hospitals don’t have OB units.  No OB unit.  No OB.  No surprise.  

One example is White County Community Hospital in Sparta.  It is a small hospital that doesn’t have an OB unit.  Guess what?   It doesn’t do cardiac work or transplants either.  Why do you think that is so?  Do you think it has anything to do with the fact that it adjoins Putnam County, where there is a regional medical center that had 1093 deliveries in 2009?

Why would a rural hospital decide not to have an OB unit?  There are many reasons, but one obvious one is that it is expensive to outfit and staff a OB unit 24 hours per day, 7 days a week 365 days a year in a county with less than 300 births per year (like White County).    Can our health care system afford an OB unit in every hospital?  I mean, think about it.  Should every hospital in every county in America have an OB unit?

And with no OB unit and therefore no place prepared to regularly help deliver babies and care for newborns, why would an OB practice in the county?  

One last little point.  Justin tries to lead the reader to conclude that the lack of OBs causes infants to die.  This is damn foolish. Guess which county has the highest neonatal mortality rate?  Dyer County, with 15 neonatal deaths per 1000 births in 2008, the most recent year of official data I could get my hands on.  Its hospital delivered 476 babies in 2009.   The hospital has 4 OBs on staff.  (See page 40 of the Report.) 

Which counties have no neonatal deaths?  They include Chester, Jackson, Pickett, Morgan, Moore, and Stewart – counties that do not have hospitals and probably don’t have OBs (but I do not  know how to confirm that because I do not know where that data exists).

Let me hasten to add that I am not so foolish to suggest that, despite the neonatal death statistics in Chester and other no-hospital counties mentioned above that mothers and their unborn children are better off living in a county with no hospital and no OB.  What I am saying is that infant mortality is a very complicated issue, and  only someone with an agenda would say that the simple lack of OB living in a particular county contributes to infant mortality in meaningful way.  But Justin’s article does just that, and therefore it is misleading.

Once again, Justin doesn’t suggest how restricting the rights of brain-damaged children will cause OBs to move to Chester County. 

There is so much more I could say.  Time does not permit me to dissect every one of Justin’s statements and demonstrate the errors in those statements.

But what Justin and his ilk are doing is wrong.  Just plain wrong.  


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