ThePopTort

Let’s Stay Focused - Reduce Medical Malpractice

There’s suddenly been a lot of scary debt-reduction talk about Social Security and Medicare cuts.  This is news.  As the New York Times notes in an editorial today, “Older Americans, a potent voting bloc, have made clear that they won’t stand for serious changes in Medicare.”  What’s not news, however, are the ongoing attacks on Medicaid because, as the paper also notes, “Medicaid … provides health insurance for the most vulnerable, who have far less political clout.” 

The Times argues for sensible Medicaid savings, noting “a greater effort could be made to rein in malpractice costs.”  We’re gonna take them at their word, that they do actually mean malpractice costs (and not as some states have interpreted this, immunity for unsafe hospitals and incompetent doctors.)  The cost of malpractice remains a huge drain on our health care system.  Let’s take a look at a few facts:

Medical errors occur in one-third of hospital admissions, as much as ten times more common than previously estimated. 

In 2006, medical mistakes contributed to up to 6.1 million injuries and 187,135 deaths in the United States.  Lost lives and disabilities caused by medical error cost between $393 billion and $958 billion in 2006, equivalent to 18-45% of total US health-care spending in that year. “For every dollar that was spent in the health care system, about 18 to 45 cents of that dollar went to hurting someone,” explained co-author Pamela Villarreal in an April 7, 2011 briefing.

According to a November 2010 study by the Office of Inspector General of the U.S. Department of Health and Human Services, about 1 in 7 hospital patients experience a medical error, 44 percent of which are preventable. These errors cost Medicare $4.4 billion a year.  Moreover, “These Medicare cost estimates do not include additional costs required for follow-up care after the sample hospitalizations.” 

Meanwhile, according to the National Center for State Courts, medical malpractice claims are in steep decline, down 15 percent from 1999 to 2008. The NCSC says rarely does a medical malpractice caseload exceed a few hundred cases in any one state in one year. 

Oh, and if people think the answer to any of this is to wipe out the right to trial by jury and substitute an administrative system or “health court” to resolve these cases, take a look at the enormous costs and patient safety disasters in Sweden and New Zealand, which have administrative systems like this. (New CJ&D study here.)

Let’s stay focused people!  We need to reduce the epidemic of malpractice in this country, not the legal rights of people who suffer costly preventable errors through no fault of their own.

U.S. Civil Justice in Free Fall

The 30-year mission of corporate America to weaken the U.S. civil justice system -  with “tort reform” like contingency fee limits, mandatory binding arbitration and other proposals to force people into alterative compensation systems (which we have criticized specifically for their bias here, here) - has finally yielded exactly the results they seem to want.

The World Justice Project issued a new report today ranking the “rule of law” in 35 countries, including the United States. Full report here.

One of the four “universal principles” WJP examined was “access to justice,” defined as “access to legal representation and access to the courts,” calling these principles a “critical cornerstone for the implementation of policies and rights that empower the poor.”  As to civil justice, WJP  notes,

Access to civil justice requires that the system be affordable, effective, impartial, and culturally competent.  Impartiality includes absence of arbitrary or irrational distinctions based on social or economic status, and other forms of bias, as well as decisions that are free of improper influence by public officials or private interests.

Accessibility includes general awareness of available remedies, availability and affordability of legal advice and representation, and absence of excessive or unreasonable fees, procedural hurdles, and other barriers to access formal dispute resolution systems. Access to justice also requires fair and effective enforcement.

In ranking a country’s “Access to Civil Justice”, WJP considered eight factors:  

8.1 People are aware of available remedies

8.2 People can access and afford legal counsel in civil disputes

8.3 People can access and afford civil courts

8.4 Civil justice is impartial

8.5 Civil justice is free of improper influence

8.6 Civil justice is free of unreasonable delays

8.7 Civil justice is effectively enforced

8.8 ADR systems are accessible, impartial, and effective

In every single one of these categories, U.S. civil justice was worse (e.g., more biased, harder for victims to access the courts and legal counsel) than in countries in Western Europe and North America as a whole, and other “high income” nations throughout the world.  In fact, overall, the U.S. ranks last (7 out of 7) in the region, and last (11 out of 11) among high-income nations.  That's right.  LAST!

Access to civil justice has clearly sunk dramatically in the United States.  In fact, we've noted before this supreme irony: that while U.S. business and medical lobbies are running around trying to strip victims of their legal rights, China – one of the world’s worst human rights abusers – let alone having a pretty bad record on civil justice – is working to greatly broaden access to civil justice for its citizens. 

"Tort reform" is not the only cause of the poor U.S. ranking, of course.  The disgraceful demise of legal service programs in this country is certainly a huge part of it. 

But when corporate and professional lobbyists continue to try to limit injured people’s access to counsel as well as the power and authority of judges and juries, or replace the civil justice system with statutory administrative structures over which corporate money can have more control, look for things to get even worse. 

Once a shining light in the world, the U.S. civil justice system is no more.  Thanks for nothing, corporate America.

Another Media-Driven Fiction - Medical Malpractice Liability Costs

There’s an article in the Christian Science Monitor called, “Could the media have ignored Terry Jones and his Koran-burning plan?” A lot of people have been asking this question, examining the responsibility of those in positions of public trust to take the high road and not spread ignorance, no matter how tempting it is to get noticed in the Web-driven 24-hour news cycle. 

I wish some in the academic world had better standards. 

I’m speaking specifically about a new “study” of medical malpractice liability costs that five members of the academic world concocted and released this week. 

Not that their conclusions were so horrible, i.e., they “found” that medical malpractice liability costs are about $55.6 billion, or  2.4 percent of total health care costs – a tiny percentage of overall costs.  Since only $5.72 billion of this number consists of payments to patients and their attorneys (consistent with the insurance industry’s own data ), the authors had to find fully 80 percent of this cost in so-called “defensive medicine”.  In other words, according to these authors, doctors spend eight times as much in “defensive medicine” costs as the entire medical malpractice insurance industry pays out in claims and lawsuits (and patients' attorneys fee) in a year. Ok, looking forward to that backup!

Before we get there, we should note the positive, confirming what we know already - that limiting people’s rights to go to court with “caps,” attorneys fee limits and other so-called “tort reforms” are stupid and ineffective policies, even though some continue to insist on them.  

But back to the study. These academics, who have made a name for themselves in the area of medical liability, apparently did the analysis because they were "getting the same questions from reporters and congressional staff over and over. How much does malpractice litigation really cost, and how much would federal tort reform bend the health care cost curve down?”  Hey, we'd all like to know that.  But if you also know that such a figure is impossible to calculate, “sheer fatigue” from the news media and some legislative assistants is really not a good reason to issue fictional pronouncements that will most definitely influence policy. 

For example, as the authors readily admit, the countervailing cost benefits of the legal system due to its deterrence function - future injuries and deaths prevented, health care costs not expended, wages not lost – is no where to be found in this figure.  But besides that, it’s clearly wrong to count as a liability "cost” the transfer of money from wrongdoers to victims. Transfer payments merely shift money from the injurers or their insurers to the injured. They are not created by the liability system or by those who must resort to it for compensation. They are created by those who cause the losses and damage in the first place.

As to the far higher $45.6 billion “defensive medicine” figure, the authors readily disclose that “considerable uncertainty surrounds estimates of defensive medicine costs.” They extrapolate figures from a study that was so discredited that no one has been able to replicate it, acknowledging “that estimates should be interpreted with considerable caution.” Then they say, “Balancing these competing sources of bias is difficult, but the two sets of concerns probably serve as counterweights to one another.” Can you imagine handing in that type of conclusion on your college statistics exam?

Here’s another question.  Should anyone paid by the insurance industry be trusted to conduct studies like this?  American Medical Risk Insurance Company funded two of the authors.  They deny a conflict.  But we know that there’s a long and sordid history of insurance industry money funding splashy but grossly inflated “tort cost” studies that are invented to satisfy a hungry media, and generally people who hate the jury system. Is this another one?

The authors’ next project will apparently be on the cost of health courts (perhaps also insurance industry-funded), which are ideas they themselves are pushing.  These proposals would replace the right to jury trial with a system that is biased against the patients, and is unconstitutional.   Policymakers, watch out! 

Punitive Damages – The Silly Season

There’s been a lot of silly talk about “punitive damages” lately – the kind of damages awarded when hideous misconduct is involved - so we thought this might be a good opportunity to revisit this misused and misunderstood topic. First, some of the silly talk.

Lanny Davis, former Clintonista turned corporate lobbyist (or even worse) gave a Wall Street Journal interviewer his views about medical malpractice, arguing that judges and juries shouldn’t be allowed to handle them.  His argument was based on so-called “facts” like this:

The problem in the system comes when you move beyond compensatory damages and into the realm of punitive damages. That’s when you penalize a doctor for gross negligence or recklessness. … After all, negligence is not an intentional act. It’s an unintentional act. If it is intentional, then it moves into the realm of the criminal, and that’s really not what people are worried about here.

Worried about?  Who’s worried about punitive damages in medical malpractice cases?  They barely exist.  There were six in the entire state court system in the last year the Bureau of Justice Statistics looked at this. SIX!  And no doubt, they were in cases of horrible misconduct or abuse, and hopefully will still be available when and if families file their civil suits against the Delaware pediatrician who (allegedly) raped and sexually abused 103 children. Hopefully, Delaware does not go down the road of capping punitive damages overall, a direction in which South Caroline may be headed right now, even in the face of “runaway Toyotas.”

Here is what else the Bureau of Justice Statistics has to say about the frequency of punitive damages:  Punitive damages were sought in only 13% of the approximately 14,000 general civil trials with plaintiff winners in 2005; Punitive damages were awarded to only 5% of plaintiff winners, and the median overall punitive damage was $64,000! 

Indeed, a couple of stories recently showed just how reluctant juries are to award punitive damages even against huge corporations, let alone doctors.  First, a story we told you about last week concerning the corporate hog farm, the stench of which was impossible to live around.  No punitives.  The second came in a Louisiana verdict Friday against Exxon Mobil.  The case was brought by 16 former employees because "offshore drilling pipes they cleaned over decades contained radioactive contamination.”   While awarding “nearly $1.2 million as compensation for the increased risk they face of developing cancer … jurors declined to award the workers punitive damages.”  This is even after an earlier jury actually did award punitives in a similar case, an award that was later greatly reduced even thought the court found Exxon’s behavior “reprehensible.”

So where exactly is the crisis?  To paraphrase a certain Senate Majority Leader, people are entitled to their opinion about punitive damages, but they’re not entitled to their own facts.  Go sit in the corner, Lanny!

The Wrong Respone to Toyota

Have you heard the latest about Toyota's problems?  It now seems the company’s sudden acceleration” fixes” aren’t working. This comes after evidence that the company tried to cover up problems by withholding discovery documents in litigation.  Could it get any worse? 

Oh yes, thanks not to the company, but to our elected leaders.

There have been some very serious questions raised about the National Highway Traffic Safety Administration’s handling of the Toyota debacle, something we have written about here. 

One of the problems, clearly, is that that agency is dangerously underfunded and understaffed.  Ralph Nader wrote in Sunday’s Los Angeles Times that even in the midst of the Toyota situation, “President Obama actually recommended cutting NHTSA's motor vehicle safety budget next year by $8 million.”  (By the way, this is at the same time the President wants to spend another $50 million to support creation of completely unnecessary new court systems to handle medical malpractice cases that our courts currently handle just fine at relatively small cost.)  Nader writes:

Former NHTSA Administrator Joan Claybrook has testified to the need for an immediate budget increase of $100 million just to assure that NHTSA has the technical personnel and capability to meet its obligations in the areas of safety standards, defect recall, enforcement and research.

At a time when about 40,000 Americans die in cars each year and hundreds of thousands more are injured, NHTSA's motor vehicle safety budget is a mere $140 million. By comparison, taxpayers will pay more than four times as much -- about $675 million -- to guard the U.S. Embassy in Baghdad.

Meanwhile, the South Carolina House has just passed a bill to severely cap punitive damages to “$350,000 or three times compensatory damages, whichever is greater.”  In arguing against the bill, opponents cited “runaway Toyotas” as among reasons why punitive damages should not be capped legislatively.  Punitive damages "send a message to corporations about protecting consumers…. ‘Let me tell you what this is truly about; it's corporate greed,’ said Rep. Chris Hart, D-Richland, who talked about how one insurance company made $58.1 billion in profits last year.”

Indeed,  although extremely rare, punitive damages have critical social and financial importance lying not in their frequency, but in the “signals” they send.  As we’ve mentioned before, history shows that companies will sometimes balance safety against profits in determining whether to redesign or recall a defective product, clean up a toxic waste site or end a dangerous practice. Juries know that, to a multibillion-dollar company, even a $1-million punitive damages award is barely a slap on the wrist.

Given the rash of corporate abuse in this country, including the Toyota disaster, a punitive damages “cap” seems like the worst possible idea at the worst possible time.

Going Nowhere With “Tort Reform”

We now know that President Obama has decided to endorse four “Republican” ideas that he says he’s willing to support to get a health care bill passed.  Now that things are moving in a “reconciliation” direction, it is unclear how exactly these items will end up in any legislation. But let's talk about one of them anyway.

One of the items the President has decided to endorse comes from Senator Tom Coburn (R-OK),  a doctor whose record on a number of issues has to be seen to be believed including his own malpractice history.   His idea is to give states the option of enacting either of two horribly anti-patient ideas. 

One would force patients to first present their case before a “screening panel” made of up representatives from the health care industry (with clear conflicts of interest) and attorneys (also with conflicts of interest especially if representing health care providers or insurers).  This would add horrendous and completely unnecessary burdens on patients just to get into court, assuming they could even get there after going through all of this.  The other terrible idea is to require patients to go before a "health court", which we have written about before.

Coburn and the President apparently feel this is necessary even though the Harvard School of Public Health found that the current system already works: legitimate claims are being paid, non-legitimate claims are generally not being paid, and “portraits of a malpractice system that is stricken with frivolous litigation are overblown.”  In addition, weakening the jury system will infect the bargaining/settlement process, which already resolves the vast majority of claims today, and thus will create more adjudicated claims.

What's even more crazy, Sen. Coburn has made clear that this overture to him gets the President nowhere on health care.  AP reports:

Republicans, meanwhile, made it clear the president's overtures will not win their hearts or votes.

Sen. Tom Coburn, an Oklahoma Republican who proposed some of the notions Obama is weighing, said that "merely incorporating these ideas into the deeply flawed House and Senate bills will not bring us any closer to real reform."

What is going on with our President?

The Truth About "Health Courts" - Say Goodbye to Juries

In the context of medical malpractice and the health care debate, a new proposal may be surfacing called “health courts” that would force all medical malpractice cases out of the court system.  These measures have a strong public relations spin attached to them – promises of a faster, more reliable system of resolving medical malpractice claims.  The truth?

“Health courts” are a terrible, anti-patient and highly controversial concept that has gotten no traction whatsoever at the state level. Consumer groups  and victims are strongly opposed to them, even though this point is often drowned-out of slick presentations by health court proponents.

Health courts force all medical malpractice cases into an administrative system based on the disastrous workers comp model  (a new bureaucracy would need to be created), but they are worse since patients would still have to prove a form of negligence and the decision-makers would come from medical community with clear conflicts of interest. The right to jury trial is eliminated, which the public does not support. There are few accountability mechanisms, few procedural safeguards, and no meaningful appeals process. There may be schedule of benefits (so much for a foot, a lung), and a severe cap on non-economic damages (or they may be eliminated altogether). These hardships, coupled with the burden of having to prove fault or “causation,” render the injured patient virtually powerless and at the mercy of the insurance and medical industries.

They are also unconstitutional. At least 11 states have found other, less radical medical liability tort restrictions violate their state constitution’s right to jury, including Illinois last month. 

Doctor’s Admission that “Medical Errors are Our Bad” - May Get Attention in Health Care Bill

Enough people are talking about the pros and cons of the guts of the health care bill that we probably don’t need to stick our PopTort nose(s) in it, too.  But we do have to say that when it comes to liability issues, we are relieved to see the strong patient safety focus in the Senate’s Manager’s Amendment (the recently negotiated Senate bill).  See the bill at p. 344.  

Here is some of what we like about it: it proposes to give money to states to consider litigation alternatives, but only programs that are shown to improve patient safety, are voluntary and allow patients to opt, and do not limit a patient’s legal rights.  Clearly, if this passes (the House bill currently has something similar), we will have our battles at the state level as certain well-funded forces try to impose anti-patient measures like “Health Courts.”  But we’ll cross that bridge, as they say….

Whatever is done, we hope it works to reduce errors, but not just in hospitals, (here, here, here, for example) but also those of incompetent individual doctors, who by the way already have more liability protections for their negligence than any other profession in the country. 

That reminds us, there was a fascinating interview published in the December 17 online New York Times column, “Doctor and Patient” with Dr. Robert M. Wachter, renowned physician and patient safety expert, who noted, “I can lose my hospital privileges if I fail to sign a dictated discharge summary or operative note. But if I don’t clean my hands for the next 10 years, nothing will happen to me. … Medical mistakes are our bad. Why should patients bear the responsibility to receive the right medication or to have the correct leg amputated? When I get on a plane, I don’t worry about safety and errors.”

He also noted, “As doctors, we have to admit first that we don’t deliver care that is of the quality and safety our patients deserve. Then we have to get past our professional arrogance. We don’t have the answers to all of these issues, and we have to be open to others who may have the answers or who can approach it from different angles.”

So I guess we'll see! 

Common Good’s Medical Malpractice “Panel” – What A Bunch of Scaredy Cats!

You know when groups are really scared of the truth.  They hold “panel” discussions on controversial topics and don’t invite experts to speak who might hold an opposing viewpoint, lest their foundation funders and audience members hear embarrassing comments and even corrections!

Such was the case with yesterday’s little soiree at the National Press Club, hosted by corporate lawyer Phil Howard and his little group called “Common Good” to discuss “Medical Liability Reform Innovations”, which included panelists hoping to scoop up some of the $25 million allocated by the Obama Administration to explore weakening patients’ legal rights, funded by taxpayers, many of whom are, well, patients.

We weren’t surprised to see the panel loaded up with representatives from the health care and medical lobbies.  But we were especially interested to see who of the group professed to represent patient safety, the real concern of many we know who strongly oppose limiting access to the courts (and told the President so). 

Looks like Dr. Lucian L. Leape, Chair, Lucian Leape Institute at the National Patient Safety Foundation (NPSF) was in the house.  The rabidly anti-civil justice American Medical Association was NPSF's founding sponsor, along with CNA/HealthPro and 3M.  Martin J. Hatlie, President, Partnership for Patient Safety, was there.  He used to be on the boards of the Physician Insurers Association of America and the American Tort Reform Association, and has been connected to other anti-civil justice groups for quite some time.  So, I think that’s it!

Had they asked us, we could have at least sent over a few fact sheets about how these “innovations” always harm patients, are very costly and unconstitutional.  Like this, this, this, this, and this. 

Guess some people can’t handle the truth??

Swine Flu Vaccine Production – More Craziness from Big Business

The conservative Federalist Society held a little pow-wow yesterday to strategize about “federal preemption” - immunity for corporations that produce unsafe products - which the U.S. Supreme Court rejected earlier this year. 

Perhaps unsurprisingly, it didn’t take long for the discussion to go off the rails, thanks to panel member Daniel Troy, Chief Counsel at the FDA from 2001 to 2004, who prior to that, represented pharmaceutical and tobacco companies in cases against the agency, and who ultimately became one of the major architects behind the whole cockamamie version of preemption which had federal agencies protecting industry from liability rather than the other way around, and was ultimately rejected by the Supremes in Wyeth.

According to Troy, who now works as General Counsel for pharma-giant GlaxoSmithKline, “[O]ne reason for the delay in swine flu vaccine to the public this year has been manufacturers' fear about litigation over thimerisol, a preservative he said is needed to safeguard multi-dose vials of the vaccine,” and has been the source of heated controversy among many who feel it can contribute to the development of autism.

Ugh! Where to start with such an outrageous “don’t blame us, it’s those victims, judges, and juries again” comment???

First of all, the notion that drug companies are trembling in the boots over the prospect of vaccine lawsuits is patently absurd.  Ever since Congress created special “vaccine courts” in 1986, taking away the right to jury trial against drug companies for families with children injured by vaccines, the road to justice for those folks has been anything but wide open.

Secondly, talk about not taking responsibility.  Every health official who knows anything about this knows that the companies providing the “bulk” of H1N1 vaccines to the U.S., like his, are still using snail-paced technology to create vaccines (i.e., “a slow and antiquated process that relies on millions of chicken eggs”). 

"We wish we had better ways to produce vaccines perfectly predictably, but this is how influenza vaccine production often goes," Dr. Anne Schuchat, who heads the immunization and respiratory disease section at the Centers for Disease Control an Prevention, said last week. 

The delays have led to renewed demands for a quicker, more reliable way of producing vaccines than the chicken-egg method, which is "50-year-old technology and involves injecting the virus into eggs and allowing it to feed on the nutrients in the egg white."

Clearly the solutions lie with better technology.  But with the "Daniel Troys" of the world trying to shift the blame to a non-existent lawsuit problem instead of dealing with a technology problem that needs a major overhaul, we all may suffer. 

Just another example about how Big Business and their lawsuit obsessions are harming the public good.