Medical Malpractice – One Step Forward, Two Steps Back

In a recent post, we reported on the insurance industry-funded (in part) Rand Institute for Civil Justice study that made a supremely obvious finding: “[There is a] highly significant correlation between the frequency of adverse events and malpractice claims: On average, a county that shows a decrease of 10 adverse events in a given year would also see a decrease of 3.7 malpractice claims.”  In other words, “the best way to reduce malpractice litigation – for everyone, including doctors - is not to limit the rights of injured patients, but to reduce the amount of malpractice.” 

In Colorado, patient safety pioneer Patty Skolnik has led the charge for enactment of one method to help reduce errors: disclosure laws that force health care professionals to publicly disclose their prior safety record.  This means that at least patients are better informed about the person to whom they entrust with their health care.

It’s one thing to empower patients, which is very important.  It’s quite another thing, however, for the government to actually do something to sanction bad, repeat-offending doctors.  As we reported last week, the New York State Department of Health (DOH), for one, has failed miserably at this.

So rather than focus on its own monumental failures, guess what DOH doing?  It is participating in a new federally-funded hospital program whereby patients injured in certain hospitals will be forced into a newly created, biased legal structure, where the health industry essentially becomes (or highly influences) the decision maker as to whether malpractice occurred.  According to the grant proposal, here is what patients will face:

Right after someone is hurt, the hospital will conduct a “rapid investigation” and it will decide if malpractice occurred.  If so, it will then try to settle with the patient before the patient has consulted an attorney or expert, has independently investigated what happened or has any idea the extent of the injuries with which they are dealing (imagine knowing at birth what a brain-damaged baby’s lifetime special needs will be). The patient will also be specifically warned that if the hospital thinks it did nothing wrong, “the institution will vigorously defend the involved clinicians.”   

If the patient hasn’t been scared off yet, they can file a lawsuit but they must submit to negotiation before a pre-screened judge trained by the health care industry who will have a "Medical Advisor" who will “independently assess whether there was malpractice and how much compensation the patient should get.”  You might expect that eventually, the hospitals’ attorneys will become pretty buddy-buddy with the small number of judges in this program.  So the notion of an unbiased process that is the hallmark of our legal system is pretty much thrown out the window. 

And who will be evaluating the success of this new program?  The Harvard School of Public Health professor who has a consultancy arrangement  with an industry-funded organization called Common Good, which is dedicated to wiping out the right to civil jury trial.   

DOH has the nerve to say that “"No rights are being taken away from any patient" by this program. But the back-door agenda here could not be more clear.  New York State, which has had severe tort reform on its books since the mid-1980s, has more recently rejected ideas like capping compensation for medical malpractice patients or wiping out the right to trial by jury for the families of brain-damaged newborns. DOH calls this, “not yet ma[king] significant headway reforming the medical liability system.”  Then they say, “The NYS Model, if successful, will demonstrate that hospitals, with support from the state, the legal community and the judiciary, can advance medical liability reform without legislation while remaining true to their mission to serve their patients and do no harm.”  Except for the harm they are doing to patients, that is.

There are a lot of people who should be pretty angry about this, not the least of which is the New York legislature.

Comments

[Judy Stephenson1]

This is outrageous. Denying an injured patient a jury trial by their peers. This is akin to sham justice of whistleblowers' cases being adjucated by the DOL Federal judges and not by a jury of their peers. Sham justice as far as I am concerned. The patient will lose every time medically and emotionally. The doctor will be slapped on the wrists and protected by their peers to injure more patients.

[Ben Buchwalter]

This is a particularly depressing form of "shooting the messenger." It's baffling to me that state health departments are drinking the insurance industry's Kool-Aid and implying that medical malpractice suits are the fault of patients rather than bad doctors. As was written on this blog last week, "If state agencies would do their job and weed out the small number of doctors committing the most malpractice, everyone wins."