Little progress made in ensuring patient safety

A decade after the National Institute of Medicine's landmark study on patient injury resulting from medical treatment, little progess has been made, according to a recent report in the New England Journal of Medicine. The article reports that "[d]espite enhanced attention on patient safety following the 1999 Institute of Medicine report on medical errors, 'the penetration of evidence-based safety practices has been quite modest.'" One evidence-based safety practice is the use of electronic medical records, but just 1.5% of hospitals have adopted new electronic recordkeeping technology.

The most frightening aspect of this report is, perhaps, the conclusion that 63% of the patient injuries were preventable. We would be interested to know how hospitals treated those preventable patient injuries — that is, did the hospitals do right by their patients and fix what they could, help what couldn't be fixed, and make up for what couldn't be helped?

Hospitals' treatment mistakes affect 1 in 7

A new study by the U.S. Department of Health & Human Services shows that 1 in 7 Medicare patients are harmed by treatment mistakes. The report estimates that these types of mistakes contribute to 180,000 deaths every year. What other type of business can get away with making serious mistakes with 1 out of every 7 customers?

How much is a year of life worth?

A recent report by the Associated Press attempted to answer this question by looking at the costs of prescription drugs. That report concluded the cost of extending the life of terminal cancer patients by just one year can be as high as $800,000. That's how much Medicare and insurance companies are willing to pay for drugs that keep cancer patients alive. A more commonly-seen figure is $50–100,000, which is still quite a bit of money to most Americans.

This question — how much is a year of life worth? — is a touchy subject in the practice of law. Every single one of my clients who have been injured, or who lost a family member, wouldn't take any amount of money if they could just put everything back to the way it was before the wrongful occurrence. That can't happen, so every case involving personal injury or death requires a jury to place a dollar amount on the value of human life. That's a hard thing to do, but our civil justice system has no other way of correcting wrongs. There is no "eye for an eye, tooth for a tooth" justice in civil cases. Making someone pay for their mistakes comes down to just that: money is the only remedy for physical harm permitted in our civil courts.

Do No Harm

The first rule of medical ethics is to "do no harm" to the patient. Yet, upwards of 98,000 patients a year die in America from preventable medical errors, a number that appears to be on the rise. A recent Newsweek article examined how to reverse this trend. Successful hospital administrators have identified the problem as a pervasive cultural one of ignorance and arrogance, one that can be solved by (1) teaching doctors basic patient safety; (2) encouraging teamwork between doctors, pharmacists, and nurses; and (3) having zero tolerance for disrespectful, abusive behavior by doctors towards pharmacists, nurses, and technicians. Implementation can be as simple as giving doctors a checklist to follow for routine medical procedures and refusing to reimburse hospitals for preventable complications. Hospitals that have tried this approach have seen a reduction in the number of preventable complications and medical malpractice claims. Apparently, only by shifting from a doctor-centric culture to a patient-centric one will preventable errors become a thing of the past.

Health insurers refusing to insure children

According to a recent report of the LA Times, several major health insurers have elected to discontinue insuring children instead of complying with a federal mandate to cover children with preexisting conditions. "Insurers need to decide if they are in the business of providing care or denying coverage," according to one consumer advocate. It looks like they've already made their decision, and it doesn't favor sick children or anyone else who desparately needs timely benefits. For an industry that's supposed to give its customers the benefit of the doubt, this represents a step in the wrong direction.

Insurers stashing record surpluses, still hiking rates

By regulation in all 50 states, insurance companies must keep a certain amount of surplus funds (instead of distributing profits to stockholders). A recent report analyzing plans covering 1 in 3 Americans showed that in many states, insurers are keeping far more surplus funds than required by law, yet are still raising rates by as much as 18%. In many instances, the insurers could be using the surplus funds to minimize rate increases but are not doing so.

The report, from the Consumers Union (the publisher of Consumer Reports), urges state lawmakers and regulators to change insurance laws to either (1) set a maximum surplus amount or (2) permit regulators to take surplus amounts into account when approving or rejecting proposed rate increases.

At a time when most Americans are struggling to pay medical and other bills, insurers are substantially raising rates even though they already have tons of our money in the bank. Should companies who are supposed to be financing our health care be adding to our stress levels by jacking up our bills?

Doctors aren't reporting dangerous doctors

Here's a link to an AP report on a recent study by a Harvard Medical School doctor which found that "a surprising 17 percent of the doctors surveyed had direct, personal knowledge of an impaired or incompetent physician in their workplaces," but that "[o]ne-third of those doctors had not reported the matter to authorities[.]"

Any person, including a doctor, that engages in dangerous behavior should be held accountable. If, as a profession, doctors won't police themselves in order to keep their patients safe, who are we going to rely upon to do so? The only other mechanism to hold doctors accountable is a medical malpractice lawsuit when a patient is actually harmed due to a doctor's dangerous behavior. It's strange that doctors will usually speak out against trial lawyers, but won't consistently speak out against the dangers lurking within their own profession.

We should all be for personal accountability

Most places you look these days, someone is blaming medical malpractice claims, and the “clever trial lawyers” that bring them, for the high cost of health care in the United States. This argument is unsupported by actual research performed by the Congressional Budget Office, who says that med-mal claims account for a mere 2% of health care costs. Furthermore, the actual practices of med-mal insurance carriers shows this argument to be untrue. For instance, Texas has strict tort reform and thus far fewer medical malpractice claim filings, but doctors practicing in Texas have malpractice premium rates double that of neighboring Arkansas in many practice areas.

The argument for tort reform also ignores the real problem underlying medical malpractice cases: some hospitals, doctors, and nurses are injuring the patients they are charged to protect. Medical malpractice laws are on the books to ensure that injured patients are made as whole as possible for the health provider’s errors. However, in many medical malpractice cases, it is impossible for patients to be made completely whole for the life-changing injuries they sustain.

That’s where medical malpractice claims step in. Civil law only provides one way for injured parties to make themselves as whole as possible:  money. That’s it. For example, consider a mother whose heart stops during labor due solely to the fault of her doctor and who has brain damage such that she will need assistance and care for the rest of her life. There are but two options for her care: either the responsible doctor pays for his mistake, or the mother receives some form of public assistance through Medicaid, Medicare, or the like.

Self-described conservatives and insurance companies would have you believe that caps on malpractice awards would reduce the cost of medical care in this country. That’s simply not true, because injured patients will require assistance and care no matter who pays for it. The health insurance lobby would rather taxpayers pay for these costs. It seems to me that pushing more injured patients onto the rolls of government health care is the opposite of the conservative movement’s stated objective.

Insurance companies accuse trial lawyers of being the scourge of the health care industry. Those same companies want to have their cake and eat it too. Notice that you don’t hear insurance companies talking about their profit margins, since that would expose the fact that insurance companies profit far more from the health care industry than do trial lawyers. For what? Taking money from one side and handing it to the other, albeit in as slowly and painstaking a fashion as possible.

Instead of providing the care patients need, insurance companies balk. Instead of paying doctors promptly, insurance companies ask that doctors negotiate an insurer discount. Instead of paying malpractice claims to injured patients, insurance companies make those same patients fight to recover through years of court proceedings while trying to recover at the same time. Industry insiders and trial lawyers call this unethical strategy “delay, deny, defend,” and it has added billions of dollars to insurance companies’ bottom lines at the expense of policyholders and taxpayers.

While some sort of tort reform may be justified, insurance reform is a more pressing issue for health care reform in this country. Conceptually, insurance is a good idea. It spreads risk throughout the population so normal people can have access to care and funds in times of need. However, insurance companies today aren’t living up to the traditional insurance laws, which require the insurance companies to put their insureds’ interests ahead of their own and to give insureds the benefit of the doubt.

In fact, insurance companies are lobbying to change these traditional rules so they can be even more aggressive in denying claims and withholding funds that properly belong to their clients. So far, the federal and state governments have turned a blind eye to this activity by giving antitrust exemptions to insurers and failing to enforce regulations that prevent insurers from abusing their clients.

A good start toward reforming health care would be to make the insurance market more competitive by strictly enforcing regulations requiring insurance companies to provide fair and prompt coverage to their policyholders. Until this happens, insurance companies will continue to take the money from our wallets and withhold it when we need it most. The only ones protecting the rights of policyholders and taxpayers from insurance companies are trial lawyers. Count us among those proud to carry that title.

Doctors for public health and safety, against tort reform

Doctors are generally thought to be in favor of tort reform, but for many MD's this is a knee-jerk reaction to medical malpractice lawsuits. In truth, medical errors are believed to cause up to 98,000 deaths annually, according to a 2003 article in the Journal of the American Medical Association. That puts medical errors in the top ten causes of death in the U.S.

Around 1% of all hospital patients become victims of malpractice, and 5% of physicians are responsible for half of the medmal cases filed in this country. Just 3% of malpractice victims actually file claims, and doctors and hospitals avoid paying for 80% of the harm they cause to malpractice victims. See http://www.centerjd.org/cjrg/Numbers.pdf for more statistics.The statistics prove that the notion that malpractice claims are out of control is an advertising gimmick that permits malpractice insurers to price-gouge doctors.

Some doctors see through the insurance industry propaganda. The current and former Editors of the New England Journal of Medicine ("NEJM"), which is the oldest continuously published medical journal in the world, filed a "friends of the Court" brief in a 2008 U.S. Supreme Court case. This case was against a pharmaceutical company for releasing a dangerous drug on the market, despite having knowledge that the drug had dangerous side effects. The drug company withheld information from the Food & Drug Administration about these dangerous side effects. The plaintiff was a woman who was administered the company's drug and who had her arm amputated as a result. A jury awarded the plaintiff $7.4 million dollars in damages.

The Editors of the NEJM, who are highly educated doctors, reviewed several cases in which drug companies "equated increased warnings with a loss of sales, [giving them] an incentive to delay warnings as long as possible... [C]ertain pharmaceutical companies have already proven themsleves unwilling to prioritize safety over profits, even when faced with the threat of civil liability." The Editors argued that the jury's verdict should stand because a robust tort system is required to effectively monitor drug companies and to improve the lives of injured patients and their families. The Editors also believed that elimination of tort claims would "threaten this nation's public heath."

Well-educated and highly-respected doctors who have studied tort reform believe that a strong tort system is needed to protect patients. That should speak far more loudly than propaganda designed to pad the profits of drug manufacturers and insurance companies.