How Much Is A Stomach Ache Worth?


What is the best way to deter medical mistakes? Does our legal system do enough to deter these mistakes from happening?
Those are questions I was pondering as I read a recent op-ed in the New York Times.

From Josh Max in the New York Times:

I hadn’t eaten a big or particularly spicy dinner, so I was surprised to be awakened at midnight by a severe burning in my sternum. I’d dutifully taken — so I thought — Omeprazole, an anti-heartburn drug prescribed for me two years ago for a hiatal hernia. As night wore on, the glass of milk didn’t help and the burning got worse, I began to think “ulcer” or “heart attack.” At 3:30 a.m. I drove to an all-night drugstore and left with a bottle of generic pink antacid, easing the pain a little. Finally I fell asleep.


After taking another “Omeprazole” to no avail the next day, it occurred to me to look at the container. I saw a female first name, someone else’s last name and the name of a drug I’d never heard of: Diflucan. Google revealed this to be a cure for vaginal yeast infections, with possible side effects of upset stomach. I fished the bag it had come in out of the garbage; my name and “Omeprazole” was printed on its label. The bag was right; the bottle was wrong. I hadn’t looked closely. I’ve never looked closely because I’ve never thought I had to. I’ve never checked the gas pump, either, to make sure it wasn’t dispensing orange juice. One trusts certain institutions.

After some encouragement from Mom, Max decides to take action against the pharmacy. After reassuring the reader that he is not a litigious person, he describes how he notified the pharmacy’s legal department that he wants $5,000 for his suffering. Max ends up settling for $2,500. I’m no legal expert, but this seems awfully generous for one night’s upset stomach.

Max continues:

My idea had been to make the pharmacy pay for its mistake with a financial tap on the nose, so the pharmacists might be a little more careful in the future. But it was me who got the wake-up call, after realizing that no one involved, except perhaps the polite man in the main office, seemed to care whether I got the right medication, was sick or well, or whether this systemic problem would ever be cured.

Basically, it seems like Max is satisfied with his compensation, but he’s unsure if his actions will actually deter the pharmacy from future misconduct or negligence.

Although this anecdote occurred in New York, this kind of thing illustrates why we need tort reform in Arkansas. We have a litigation system that is pricey and difficult to use; those who navigate it successfully are sometimes overcompensated. Reducing the transaction costs of litigation would help genuinely injured people receive appropriate compensation faster — and ensure that meritorious requests won’t get drowned out by weak claims.

The current system is failing to deter true misconduct, while making it too easy for those looking to make a quick buck off of medical institutions to pursue questionable misconduct claims.

Maybe this is why Arkansas currently ranks in the bottom ten percent of doctors per person by state — and that’s something tort reform could fix if it’s passed by the voters in 2018.

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