The Lottery

There's been a mistake, and someone will pay for it.

We've recently been witnesses ( for most of us, at a comfortable remove, owing to the impersonal nature of TV news) to two major catastrophes.

The first was the breakup of the shuttle Columbia, and the second, the death of young girl whose newly implanted heart and lungs were mistakenly mismatched with her blood type.

Investigations to determine the cause(s) of these disasters are underway, and at this moment, there is no way to predict the outcomes. Most likely, as a best guess, someone or something will be identified as the initiating cause of the chain of events leading to the dreadful outcomes. In the case of Columbia, perhaps it will be that someone didn't apply enough glue to one of the tiles (or a janitor didn't clean up the hangar well enough, and some debris was picked up by the shuttle).

For Jessica Santillan, somebody failed to read a label and someone else (or perhaps the same person) didn't notice the mismatch until it was too late. The person who committed this obvious "malpractice" may have been one of the lowest members of the transplant team. As they say, "The operation was a success, but, unfortunately, the patient died!" Certainly the surgical team did a fantastic job. After all, we're talking about taking out a child's heart AND lungs, and replacing them with another set. Your average country doctor doesn't often do this procedure.

For the relatives of the lost Columbia astronauts, there will no doubt be some sort of compensation paid by NASA / our government. This will be done without the need to place the blame for the accident on any one person, and no attorneys will be involved. It's a "no fault" situation - the event happened, lives were lost, and families will be given some amount of money (which will in no way replace their lost loved ones).

From the sound bites on the news, it would appear that "someone is going to pay" for Jessica's lost life, the only question is the amount of cash that will change hands. This will happen despite the fact she was in this country illegally (hard to figure that one out), and the likely case that the doctors and hospital involved may have been doing the procedure without any hope of being paid. There must be a hundred trial lawyers vying for the chance to be the family's representative. This case is the biggest slam-dunk since Wilt Chamberlain

Jessica's case (and Jessica) have become a "cause celebrer" for those who are opposed to caps on malpractice awards. After all, $250,000 doesn't begin to cover it adequately when we're dealing with a life ended before it got well started. Specifically, the columnist Ellen Goodman, not exactly a right winger, wrote about this in just those terms, extending the idea to cover many instances of "egregious" medical error. (She quoted the "99,000 killed annually by medical errors", which Dr Miller discussed in a Guest Column on this site.)

Here's a thought: Many of our citizens have already chimed in with their thought that Jessica's family deserves nothing because she was here illegally. Regardless of that, she is, after all, dead, and she was a real person, loved by those around her. If she had been a blue-eyed daughter of a couple from Iowa, would her value have gone up? How high is up?

Some of us feel that our current "malpractice insurance crisis" (we've been through several) will be solved by placing a cap on awards for pain and / or suffering. Where this has been done, it must be said, there is less trouble than in states which don't limit awards. But simple limits won't cure the problem. There are times when the sky should be the limit (see Jessica Santillan), when the offense is particularly terrible. How much do you want if your doctor amputates your right leg when the problem was clearly a left-legged one?

NASA's approach may be the best solution. A loss occurred, compensation will be paid, and there is no need to establish blame in order to facilitate payments. NASA will deal with the problem of who or what caused the breakup, and will, hopefully, correct it without the assistance of the trial lawyers.

Similar "no-fault" insurance for medical mishaps should be given a good look. The majority of cases could be settled for well under $250,000. Those deserving more would get more, based on the magnitude of the loss. No need for lawyers. Just like NASA, physician peer groups would then root out the causes of poor practice and correct them.