ThePopTort

Lawsuit’s Hard Knock Life Gets a Break

Hi.  My name is Annie Lawsuit and let me tell you, it’s not easy being me.  Politicians constantly insult me.  The media constantly misrepresent me.  I’ve had Presidents of the United States attack me - by name!  My ability to exist at all is threatened every day.  

But today is a good day.  Today, my very existence was publicly validated in ways that I could never have imagined.  Let me explain.

If you look on the op ed page of the New York Times, you will find a column called, “Learning From Litigation” (in the very same spot they gave Angelina Jolie last week, no less.)  Like I’ve been trying to tell everybody all these years, I am something you can learn from!

The author of this article said some really nice things about me and I couldn’t be more proud.  Here’s some of what she wrote:

My study … shows that malpractice suits are playing an unexpected role in patient safety efforts, as a source of valuable information about medical error. Over 95 percent of the hospitals in my study integrate information from lawsuits into patient safety efforts. And risk managers and patient-safety personnel overwhelmingly report that lawsuit data have proved useful in efforts to identify and address error.…

Lawsuits can also reveal errors that should have been reported but were not — medical providers notoriously underreport errors (although studies have shown that the threat of litigation is not responsible for this underreporting) and lawsuits may fill these gaps.

Moreover, litigation discovery can unearth useful details about safety and quality concerns. Analyses of claim trends can reveal problematic procedures and departments, and closed litigation files can serve as rich teaching tools. …

Moreover, because lawsuits help to identify incidents and details of medical error, limitations on lawsuits may actually impede patient safety efforts.

Medical-malpractice lawsuits do not have the harmful effects on patient safety that they are imagined to have — and, in fact, they can do some good.

That's not all. We learned late yesterday that Charles Schwab backtracked on its “requirement that clients waive their right to bring class-action lawsuits.”  (See our earlier coverage.)

Schwab's right to stop clients from bringing coordinated court actions was challenged last year by the Financial Industry Regulatory Authority, the securities industry’s principal regulator. A FINRA hearing panel in February ruled that Schwab's policy does violate FINRA rules but was consistent with federal law and recent Supreme Court interpretations of the Federal Arbitration Act.…

Consumer advocates, along with class-action lawyers, have blasted Schwab's efforts to limit the lawsuits, saying many ordinary investors cannot afford to pay on their own for the cost of arbitration hearings.…

Public Citizen, a consumer watchdog group that has been circulating a petition asking Schwab to rescind the class-action ban, congratulated the company for its "responsible" decision. It said many of its 19,000 supporters who signed the petition also are Schwab customers who spoke directly to the firm.

See, for me, each of these forced arbitration clauses with class action bans is like the death penalty, so you can see why I’m so happy. 

And speaking of arbitration, we found out that on Wednesday, a federal judge in the Northern District of California (Michelle Lou v. MA Laboratories et al.) ruled that an arbitration clause in an employment contract was “procedurally oppressive and unconscionable,” that “the procedural unfairness was severe and the substantive one-sidedness [because the employer was allowed to go to court while the employee wasn’t] was heavy-handed” and therefore the forced arbitration clause was unenforceable!

It’s been a hard knock life for 35 years.  But not today.

The Right Way/Wrong Way on Caps

Three times in the last 35 years, the insurance industry has created liability insurance “crises” for doctors (and other businesses and professions).  Each time this has happened, the insurance industry has tried to cover up its own mismanaged underwriting by blaming the legal system for its sudden, astronomical premium increases.  Like clockwork, following these rate hikes have been frenetic calls for legislative limits on victims’ rights to sue, with state lawmakers viewing the “crisis” as an isolated problem rather than indicative of a broader national problem caused by the cyclical nature of the insurance business.

The first time this happened was the mid-1970s.  On June 9, 1975, Newsweek ran a cover story, "Malpractice - Doctors in Revolt.”  The "revolt" was against sudden malpractice premium hikes.  Sound familiar?  Insurers quickly blamed what they believed was occurring in the country – a “litigation explosion.”  They demanded huge rate hikes from state regulators and convinced lawmakers that the only way to bring rates under control was to limit the legal rights of injured victims , i.e., insurer payouts.  In fact, insurers learned during this period that state regulators would give away the store in rate increases.  They also learned that they could easily take political advantage of the situation by asking state lawmakers to limit victims’ rights.  And it was during this period California enacted the Medical Injury Compensation Reform Act, or MICRA, which placed a $250,000 cap on non-economic damages for malpractice victims.

Yet it turns out that there never was a “litigation explosion.”  After insurers abandoned the medical and product manufacturer lines, the federal government decided to review the situation and not simply accept the insurer’s assertions that litigation was “exploding.”  An inter agency working group was formed under then Federal Insurance Administrator J. Robert Hunter, to look into the crisis and to report back specifically as to whether a claimed “explosion” of medical malpractice claims was causing the huge and sudden jump in premiums that doctors were experiencing.

Hunter’s research immediately found that data was not available to answer this question.  Insurers did not have such data.  Therefore, working with the National Association of Insurance Commissioners (NAIC), they undertook a closed-claim study.  The closed claim study revealed that there was no “explosion” of claims and that there was no justification for the insurer actions.  (See more here.)

But it was too late for California. Incredibly, MICRA has remained on the books for 38 years.  MICRA's $250,000 cap is worth about $65,000 today.  This cap has never once been adjusted for inflation.  Because medical malpractice cases are so expensive to bring and the cap is so low, it’s often impossible for an injured patient to even bring a case in California.  It’s been a bonanza for the insurance industry.  In fact, California’s medical malpractice insurance industry has become so bloated due to this cap, that “as little as 2 or 3 percent of premiums are used to pay claims” and “the state’s biggest medical malpractice insurer, Napa-based The Doctors Company, spent only 10 percent of the $179 million collected in premiums on claims in 2009.”

However, the political lessons learned by the insurance industry were clear: by blaming lawyers and litigation for a crisis that the industry itself had manufactured, the industry could obtain major changes in tort laws – basically, gravy to their bottom line.  Their clients – businesses and doctors – were more than happy to go along.  It is a political strategy that worked in the 1970s, and carried them through the next three decades.

To wit, in 1986, in the midst of this nation’s second liability insurance crisis, Missouri lawmakers were told by insurers the same thing - that the only way to reduce skyrocketing insurance rates was to enact a similar cap on non-economic damages.  And they proceeded to enact a $350,000 cap.  But when the third insurance crisis hit in the early 2000’s, guess what happened?  Claims were down in Missouri, alright.  “New medical malpractice claims dropped 14 percent in 2003 to what the [Missouri Department of Insurance] said was a record low, and total payouts to medical malpractice plaintiffs fell to $93.5 million in 2003, a drop of about 21 percent from the previous year.”   And “[t]he National Practitioner Data Bank, a federally mandated database of malpractice claims against physicians, found that the number of paid claims in Missouri fell by about 30 percent since 1991.  The insurance department’s database found that paid claims against physicians fell 42.3 percent during the same time period.” 

But doctors’ malpractice insurance premiums rose 121 percent! 

Fast forward to 2013. 

Today, Missouri’s cap is no longer on the books because the Missouri Supreme Court struck down the law as unconstitutional 26 years after it passed. Over the weekend, the St. Louis Post-Dispatch wrote a blistering editorial, strongly opposing the effort by some Missouri lawmakers to reinstate the unconstitutional cap, and referencing the recent case of Regina Turner, whose neurosurgeon operated on the wrong side of her brain leaving her severely disabled.  

And just last week, a major new effort got underway in California to, if not repeal MICRA, at least properly adjust the 38-year-old $250,000 cap for inflation. Here’s some of what the campaign “38 Is Too Late” folks say: 

MICRA has a disproportionate impact on people who have little or no income, including children, the elderly, stay-at-home parents and working class Californians.

• Victims of medical negligence can collect the estimated cost of actual economic damages, such as loss of income resulting from their injuries. On the surface, that may seem fair. But the law has a disproportionate impact on people who have little or no income, including children, the elderly, stay-at-home parents and working class Californians. The reason is that these citizens have little or no economic losses resulting from lost income.
• Despite having no impact on health care or insurance costs, non-economic damages caps have a tremendously negative impact on the permanently injured, especially, for example children who may live for 70 years with brain damage or other catastrophically debilitating injuries. California’s 1975 cap on non-economic damages is worth $61,525 in 2009 dollars. A patient would need to recover $1,018,201 in 2009 for the equivalent medical purchasing power of $250,000 in 1975.

It’s been over three decades since California went down a very cruel road.  It's time to do something.  Go here to help.

Health Care: Look Who’s Not Talking and Whose Job Is it Anyway?

So much focus of medical liability system “reformers” these days is about “communication.” Patients would be safer if doctors were more honest about their “mistakes,” the theory goes.  Hhmm. I’m not saying that couldn’t happen, but when you’re talking about “communication” in a hospital setting, the concerns of patients don't seem particularly urgent.

Take what’s happening in Wisconsin. There, the medical lobbies are pushing legislation to change state law to lessen what doctors must tell their patients. The standard now is “what a reasonable patient would want to know” but some lawmakers want to change the standard to “what a reasonable physician would tell a patient.”

“The last thing you want to do is roll back the way we get information and how much information we get,” said Martha “Meg” Gaines, director of the Center for Patient Partnerships and an associate dean at the University of Wisconsin Law School.

The proposal would move away from what patients want and need to know, she said, to what doctors think patients need to know.…

Informed consent should be what the patient wants to know - not what a physician thinks the patient should be told, she said.

In a hospital setting, patients are always at an enormous disadvantage when it comes to getting information about their own care let alone protecting themselves from getting hurt. There’s an effort now to burden patients with the responsibility of keeping doctors and nurses from infecting them.  Patients are supposed to keep asking health care providers if they’ve washed their hands. That’s because “healthcare workers comply only about half the time…and one in 20 patients will acquire an infection while in the hospital.”  So, it should be their job to ask this question, even though it is well-recognized that “speaking up for yourself in that setting is not an easy thing to do"?

“No one wants to be confrontational with the person you hope will save your life,” said Dr. Michael Bell, acting director of the division of healthcare quality promotion at the U.S. Centers for Disease Control and Prevention in Atlanta.

Plus, as one expert noted, “In some ways it says to patients, ‘This is your responsibility for us to do things safely for you, including hand hygiene. Why should it be the job of the patients or family members to make sure everybody cleans their hands? That’s the job of the system.” Ya think?

And not to mention that fact that sometimes, doctors (especially surgeons) can be, well, bullies. USA Today had a story last week about this problem:

Every workplace, like every schoolyard, has its bullies. But when the workplace is a doctor's office, hospital room or surgical suite — when doctors throw charts at nurses or nurses throw insults at trainees — it isn't just a workplace problem. It's a patient-safety issue, these experts say.

"The impact in health care is significant because you are dealing with patients' lives," says Peter Angood, CEO of the American College of Physician Executives in Tampa. Patients who experience or witness boorish behavior have every right to speak up ... because the quality of their medical care may depend upon it.

But who’s gonna do that? For example, should it have been patients' job to question the medical judgment of Dr. Faisal Albania, the St. Louis area neurosurgeon who apparently performed so many risky surgeries on spines, necks and brains, causing “permanent nerve damage, chronic pain and lost income” (and death) that he’s now “a defendant in about 50 lawsuits?  Meanwhile, Dr. Albania was allowed to keep practicing “even after the state’s highest court upheld key findings by the Missouri medical board against him.”

“I think he’s hurt a lot of people,” said Alvin Wolff Jr., a lawyer from Clayton who filed a suit last year on behalf of Gary Cotter of Pinckneyville, Ill., that accused Albania of performing an unnecessary surgery on his spine in 2010 that left him in permanent pain and hunched over. “Why do the hospitals let a guy like this on staff? Why do they let a guy like this stay on staff?”

Good question. Where was the hospital here? Where was the state medical board? (Indeed Missouri’s board is sadly typical – check out what’s going on in California.) They clearly weren’t asking the right questions or taking steps to save patients lives.  Reminds me of the hospitals featured in last night’s 60 Minutes, which had evidence they’d hired a serial killer nurse, told no one about it, and then gave him a "neutral" reference.

An Unbelievable Week in Review

We haven’t posted much this week.  That’s not because of the scarcity of civil justice news but rather the opposite - we were overwhelmed by the significance of it.  Finally, here is a quick review.

We’ll start by noting that April 20 marks the third anniversary of the Deepwater Horizon oil rig explosion in the Gulf.  The Coalition for Sensible Safeguards has a good wrap-up.  Ken Feinberg, the lawyer who was hired by BP to administer its highly-controversial victims’ compensation fund, the Gulf Coast Claims Facility (now taken over by the court), has been hired to distribute funds to the Boston Marathon victims.  This money has been donated by various charitable sources.  It’s our view that victim compensation funds are far more appropriate where there is no discernable wrongdoer capable of compensating for mass casualties - a wrongdoer that should be held accountable in court, like BP.  We’ll see how Mr. Feinberg does in his new role. 

The United States has had some of the best and, under some circumstances, the only laws available to human rights survivors to obtain some sort of redress, and legally to hold abusers accountable.  These laws include the Alien Tort Statute, a law which (you would think) should be a source of pride in this country, especially when you see what happens in other countries like Guatemala.  (There, corrupt leaders just stopped the genocide trial against war criminal Rios Montt.)  But the U.S. Supreme Court substantially chipped away at the ATS this week by greatly limiting its reach. (See more in Scotusblog and from the Alliance for Justice.)

Turning to Texas, it’s clear lax regulation was largely to blame for the tragic fertilizer plant explosion.  The Dallas Morning News put it this way: “[T]his much is clear: The explosion came after years in which state and federal agencies overlooked the potential for what some say was a preventable catastrophe.” More here. And, "A soil scientist at U.C. Berkeley says the deadly Texas explosion is another example of a troubling pattern; a lack of proper oversight to ensure public safety. Professor Garrison Sposito is not the only scientist or engineer to make the same connection. He says you can see it in the Deepwater Horizon oil spill …”  So back to that again.  And that's not all.  Texas corporations also know that if they kill or injure people, it's unlikely they'll ever be held fully accountable in court. 

Texas is also home to one of the most startling medical malpractice news stories of the week.  After years of trying (falsely, we might add) to convince the public that enactment of draconian “tort reform” in Texas caused doctors to flood into the state, this week Texas lawmakers took up emergency legislation to fix - wait for it – the state’s critical doctor shortage.  

And that’s not the only unbelieveable med mal story this week.  Anyone who thinks profit isn’t the primary cause of our nation’s horrendous patient safety problem better take a look at the New York Times this week, which reported on a JAMA study finding that, “Hospitals make money from their own mistakes because insurers pay them for the longer stays and extra care that patients need to treat surgical complications that could have been prevented.…”

Dr. Barry Rosenberg, an author and a managing director of Boston Consulting, said the study came about because his firm was working with Texas Health Resources to find ways to reduce its hospitals’ surgical complication rates, which, at 5.3 percent, were in line with those reported by similar hospitals. Part of that work involved analyzing the costs, and he said the team was stunned to realize that lowering the complication rates would actually cost the hospital money.

“We said, ‘Whoa, we’re working our tails off trying to lower complications, and the prize we’re going to get is a reduction in profits,’ ” Dr. Rosenberg said in an interview. …

In an editorial, Uwe E. Reinhardt, an expert on medical economics from Princeton University, called the study’s findings “troublesome but not surprising.” He called the current payment system “untoward,” adding that it “can tempt otherwise admirable people into dubious conduct.”

Dubious, and sick.  And speaking of sick, let’s not forget guns.  You all know about the shameful Senate gun vote this week.  As if the gun industry couldn't get any more sickening, this industry, which already is immune from liability for gun violence, started blocking Boston bomb investigators because apparently the reach of their extensive legal protection wasn’t infinite enough for the NRA.

Extremism cannot be maintained.

It’s the Texas Insurance Industry, Stupid

Debunking myths about the impact of Texas “tort reform” is clearly a favorite PopTort pastime.  (Like here, here.)  Admittedly, we’re a little obsessed by this, but what are we supposed to do when articles like this keep popping up?  

The Austin American-Statesman is carrying a dynamite op ed by professors Bernard Black, David Hyman and Charles Silver, discussing their forthcoming article (currently being peer reviewed), which finds “no evidence that physicians fled Texas in great numbers prior to tort reform or returned in droves thereafter. To the contrary, by comparison to other states, Texas had a below-average physician-to-population ratio before tort reform and has a slightly worse ratio today.”  And here’s the kicker:

Why doesn’t Texas have more doctors? We can only speculate, but one reason could be related to the number of Texans who lack health insurance. Demand for medical services from insured patients is a strong lure for physicians. To attract more physicians, Texas’ leaders will have to address this issue, or identify another factor that explains why Texas remains well below the national average in physicians per capita.

See how that works?  Doctors understandably don’t want to practice where people can’t pay them.  And writes Texas Watch,

We are dead last in the percent of individuals with health insurance and are near the bottom in the percent of workers with employer-based health insurance.”  [Plus (and no offense to my Texas friends),] “Texas ranks near the bottom in the rate of home ownership, a fact that is exacerbated by our low personal credit scores, and high rate of subprime mortgages.  Plus, with the highest home insurance rates in the nation, more of our money is going to pad insurance company profits. 

In fact, the padding of Texas insurer profits has become a virtual tradition, dare I say "sport," under the reigns of the last two Governors.  (If you yearn for the days of Governor Ann Richards like I do, catch the Broadway show Ann, extended through September 1!) But back to insurance. Yesterday, a Texas insurance company was indicted in Virginia for defrauding Virginia Tech students, if you can believe that.  Writes the Richmond Post Dispatch: 

A Texas company that provided health insurance to Virginia Tech students fraudulently overstated claims by more than $9 million to boost its profits, according to a 57-count federal indictment unsealed Tuesday.

The grand jury indictment in U.S. District Court in Abingdon charges GM-Southwest Inc. and its former owner, John Paul Gutschlag Sr., with racketeering, conspiracy, money laundering and fraud.

The indictment says that by overstating claims, the company was able to charge higher premiums to Virginia Tech and its students and discourage competitors from bidding to provide the service.

As if those students don’t have enough pain in their lives.

Hot Pop Topics

If you’ve ever watched The View, you know that every show starts off with Hot Topics,  where the hosts (whoever's left of them) discuss the latest hot news items. No doubt today’s show will address Margaret Thatcher and while they’re on the topic of “death”, probably last night’s Mad Men. 

If there’s any time left on the show, we’d like to suggest a couple other very hot news items (at least in our world) that definitely need discussing! 

The U.S. House Intelligence Committee apparently had a committee staff call briefing with Congress’ paymasters, the U.S. Chamber of Commerce, telling the Chamber that it’s set to pass the highly-controversial cybersecurity bill that not only violates the privacy rights of everyday people (the ACLU calls it a “privacy disaster), it also immunizes big corporations that engage in this behavior. Writes Bloomberg,

Many of the House bill’s corporate supporters are among the top 20 contributors to [Committee Chair Mike] Rogers’ 2011-2012 campaign committee, according to the Center for Responsive Politics, a Washington-based research group. They include AT&T, Verizon Communications Inc., Boeing and Lockheed Martin Corp. employees and their families.

[Ranking Democrat C.A. “Dutch”] Ruppersberger’s top contributors in the same period also include Boeing and Lockheed employees and their families, according to the center.

The American Civil Liberties Union and other advocacy groups have stoked online opposition to the House bill, saying it would allow Americans’ personal data to be shared with the National Security Agency and the military, and let the government use that data for undefined “national security” purposes.

Meanwhile, there’s a medical malpractice case out of Nevada that medical malpractice and insurance expert, Professor Tom Baker at University of Pennsylvania Law School called a possible “sea change” for managed care companies. Specially,

A Nevada jury on Thursday found Nevada affiliates of UnitedHealth Group Inc responsible for infecting two patients with hepatitis C, a disease that attacks the liver. The patients claimed they became infected because their gastroenterologist used allegedly unsafe injection practices for an endoscopy. The third plaintiff was the spouse of one of the patients.

Typically in medical malpractice cases, plaintiffs can only recover damages from the doctor and the hospital. But in the Nevada lawsuit, the plaintiffs argued that UnitedHealth Group should be held responsible because the accused gastroenterologist was part of the company's network and that the insurer should have known about allegedly unsafe practices.

If the plaintiffs' theory of liability is upheld on appeal and adopted elsewhere, it would represent a major change for the insurance companies, and likely increase the scrutiny insurers place on doctors within their network, experts said.

Although the case rests on Nevada state tort law, other state courts could follow Nevada's lead, forcing insurers to make significant changes to their oversight of member doctors, and either raise premiums or further restrict their networks of doctors, said several professors who specialize in medical malpractice law.

Dr. Arnold Rosen must be all ears hearing this news!  (Sorry, bad Mad Men joke.)

SOTU: How About We Try Managing Care Properly for a Change?

We’re not saying it was among the most tweeted moments of the night, like the President’s call to increase the minimum wage or #watergate.  We’re not even comparing it to important issues like fixing the voting process, ending climate change or stopping gun violence.

But we would be remiss not to observe that in the State of the Union address last night, when the President discussed health care, he noted the following:

We’ll bring down [Medicare] costs by changing the way our government pays for Medicare, because our medical bills shouldn’t be based on the number of tests ordered or days spent in the hospital – they should be based on the quality of care that our seniors receive.

So, wait, in other words, “fear of ligation” (even though less than 5% of errors result in a lawsuit) isn’t the problem, but rather it’s Medicare’s “fee-for-service” medicine?  In other words, we need to fix a system that creates perverse incentives for providers to do too many tests and not make patients better?  And we can fix this problem by managing care properly, not by stripping patients of their legal rights?

Well, knock me over with a tiny Poland Spring water bottle.

Doctors and Apologies

How weird was it that around the same time Daniel Day Lewis was reciting the physicians’ Hippocratic Oath while accepting his Screen Actors Guild award, a bad case of medical negligence was happening over at PBS. That would be the death of Downton Abby’s Lady Sybil from pre-eclampsia, thanks to a misdiagnosis from a terribly pompous obstetrician, who even defied the local doctor who told him that Sybil needed to get to the hospital asap.

Notice the guy never apologized?  We’re pretty sure that wasn’t because he feared being sued a century ago in Britain. 

Also weird was the coincidental very long piece in the Boston Globe magazine by Darshak Sanghavi, the chief of pediatric cardiology at the University of Massachusetts Medical School in Worcester, titled, “Medical malpractice: Why is it so hard for doctors to apologize?” The case study in this article was another obstetric story, although this one was true and resulted in the death of a premature infant, whose mother was treated so poorly by hospital personnel who were covering up information, that she finally sought counsel and sued.

There were actually a few good points in this article aside from its ridiculous characterization of her attorneys – the only ones who eventually helped her, by the way. (“For patients seeking information, the only obvious recourse is to call a malpractice lawyer, whose livelihood depends on replacing a patient’s desire for comfort and understanding with a need for vengeance.” Vengeance? Take a look at the stories at the bottom of this page and let me know if you think “vengeance” was motivating any of them.)

Here are a few additional points. The authors say, “When a mistake is suspected, it may be unclear who from a team must step in to take responsibility.” Well, it’s worse than that actually. As we noted in this post, the U.S. Dept. of Health and Human Services published a study last year about hospitals' massive error “underreporting” problem because hospitals employees don’t seem to know what patient harm even is – and if they do, they think it’s someone else’s job to report it.

There is reference to a new Massachusetts law “that, among other things, usually allows doctors to speak more openly to patients and families who were harmed, even apologize to them, without worry that their words will later be used against them in court.” Well, there’s actually much more to it than that. If the case does go to trial (there is a 6 month waiting period from the time the attorney notifies the provider of the case and the actual filing of the case), and the doctor deviates at all from what was told to the patient, whatever the doctor admitted to – including the apology itself– can indeed be used in court. It’s a check to make sure there is accurate and honest disclosure.

In terms of Mr. Boothman’s program at the University of Michigan Health System, hhmm. We’ve noted the problems with his system before.  While we were originally quite skeptical of the Massachusetts program, our further investigation makes us think it's far less problematic for patients than Michigan’s.

We do really like these points, however:

[T[here is a yawning chasm between physicians’ perception of malpractice costs and the reality of them [and] those annual bills for doctors haven’t been rising the way, say, the average person’s health insurance premiums have. On the contrary, a recent analysis showed that inflation-adjusted malpractice premiums actually fell from 1975 to 2005 for 96 percent of all Massachusetts physicians. (That didn’t stop the American Medical Association from declaring this a “crisis state.”)

As far as defensive medicine, says the author, “[s]tudies show that doctors order a lot of questionable testing and treatment even when malpractice risks are very low.” And, “Contrary to many doctors’ beliefs, there is no epidemic of frivolous lawsuits” and “when doctors make an actual mistake, the system is slightly biased in their favor.” And there’s more:

The misleading image of the doctor besieged by bogus lawsuits dangerously obscures an important fact: The vast majority of major medical errors never see the light of day. A classic 1991 study found that only about 2 percent of patients harmed by medical negligence filed a claim. According to a spreadsheet I was given, Harvard-affiliated hospitals were the target of only 90 malpractice claims relating to children between 2006 and 2010, a period when doctors racked up millions of patient encounters. The vast majority of the medical care at these hospitals is superb, to be sure, but it strains credibility to think that any major academic center makes a harmful mistake so rarely (especially when a 2010 study showed that 15 percent of all hospitalizations result in preventable harms).

The author also has good things to say about CRICO, insurer for the Harvard system, which focuses directly on reducing errors as the way to stop death, injuries, claims and lawsuits. The insurance industry could be playing a much larger loss prevention role than they are. See our earlier coverage here of the NY Presbyterian Hospital-Weill Cornell Medical Center program instigated by the hospital’s insurance carrier, MCIC Vermont.

And something needs to be done about doctors like Wisconsin’s Dr. David Almasy, who killed Nicole Johnston, a 35-year-old mother of four by giving her “at least 100 times too much epinephrine.” For this, “the Wisconsin Medical Examining Board in 2011 reprimanded Almasy, required him to take two classes and fined him $1,200.” 

Medical boards - where the coverup always ends up.

The New York Times Schizophrenic Medical Malpractice Coverage

Today, the New York Times has a sickening story about the Texas "tort reform" law and its impact on injured patients - the law that Gov. Rick Perry says “had just the impact we desired.” No doubt.  Here’s the impact.

Connie Spears’ legs were unnecessarily amputated because ER doctors first sent her home from the hospital with a severe blood clot and extensive tissue damage, even though she told them of her history with blood clots.  She tried to find a lawyer to take her case but because the negligence laws in Texas have become so anti-patient thanks to “tort reform,” she couldn’t.  Finally, one heroic attorney, Justin Williams, took her case saying, “Her life has basically been ruined by all of this, and there was just no way I could turn her down.” 

But then this happened: [T]he case fell apart under the new expert-witness rules.”  Not only must Ms. Spears prove the ER doctors were “willful and wanton” in their negligence, she had to find “a practicing or teaching physician in the same specialty as the defendant to serve as an expert witness” to say it.  Even more outrageous, if the patient “fail[s] to produce adequate expert reports within 120 days of filing their cases, they are liable for defendants’ legal fees.”  So in her case, she tried but couldn’t meet this absurd time-frame.  Now, apparently some of the defendants are trying to make her pay their legal fees!  Writes the Times, “With her retirement savings tapped and her husband out of work, she is afraid they will lose their home.” 

At the same time, this appeared in the Times Wellness blog by Pauline Chen, M.D. The focus of this article is that “doctors have started to shift their focus from the financial aspects of malpractice to the untold hours spent focused on lawsuits.” In other word, now we should be more concerned about the “psychic” damage to physicians (who have well-paid insurance lawyers defending them, by the way), than the horrifying actual damage caused by negligent care, killing 98,000 people every year (at least), plus brain injury, blindness, quadriplegia, misdiagnosed cancer, the death of a child, etc.  Really? How about the fact that the vast majority of preventable errors that physicians commit never result in a claim at all? (Even Dr. Chen puts this likelihood at less than 5%.) Shouldn't we be far more concerned about what happens to patients like Ms. Spears in states like Texas?

In addition, if you take a look at the Health Affairs study cited in this blog, written by researchers at Rand’s Institute for Civil Justice, it's clear that a tremendous amount of manipulation of raw data went on. And the most obvious consideration – a physician’s malpractice history including whether there were multiple claims against the same physician - was not considered relevant by these researchers!  Yet the vast majority of doctors (82 percent) have never had a medical malpractice payment.  In other words, in this Health Affairs study, the vast majority of good doctors are thrown into a group that includes those with long histories of malpractice in order to achieve an "average," suggesting that all doctors should fear spending of good chunk of their careers fighting claims.  This is misleading. 

Nor is this helpful to the debate. Other studies say that doctors’ fear of lawsuits is “out of proportion to the actual risk of being sued” and enacting “tort reforms” has no impact on this phenomenon.  Several explanations are suggested for this undue fear.  One squarely blames the medical societies, which continuously hype the risk of lawsuits to generate a lobbying force to help them advocate for more and more liability limits for doctors.  This New York Times article is simply adding to the hype machine.

Nothing today prevents insurers from settling legitimate claims with patients before they file a court case or from paying valid claims expeditiously. Yet they do not.  Insurers hold onto money as long as possible.  They deny, delay and defend claims even when their clients are clearly at fault.  And why shouldn’t they in states like Texas, where patients will never win? Trying to come up with explanations that blame patients for any of this is sickening.

Medical Malpractice and the Endlessly Occurring Never Events

Today I feel like President Obama.  The President’s theme throughout his public response to the Newtown tragedy can be summed up this way: enough is enough.  That’s exactly how I felt reading an article today in the Wall Street Journal, with the lead going something like this: 

They are known as "never events"—the kind of mistake that should never happen in medicine, like operating on the wrong patient or sewing someone up with a sponge still inside—yet new research suggests that they happen with alarming frequency.

A new study led by Johns Hopkins University School of Medicine, published online in the journal Surgery, found that surgeons make mistakes like this – leaving behind foreign objects, operating on the wrong site or even the wrong patient - more than 4,000 times a year in the United States.

They reached that number by reviewing data from the National Practitioner Data Bank, “a federal repository of medical-malpractice judgments and out-of-court settlements.”  But as we know, only a tiny percentage of people injured by malpractice in this country file lawsuits, let alone get a settlement or judgment that’s reported to the NPDB.  The study assumed 12 percent of errors result in indemnity payments.  Others say only three percent of patients file claims. (See more in the Center for Justice & Democracy’s Briefing Book, Medical Malpractice: By the Numbers.)  So are we really talking about far more than that?  And six percent of these patients die.  Another 32.9% have permanent injuries.  Alarming doesn’t nearly describe this.  Writes the Wall Street Journal:

Martin Makary, lead author of the study and an associate professor of surgery at Johns Hopkins, said his team's estimates are likely low; previous studies have shown that many patients never file claims after errors. And not all items left behind after surgery are discovered. Typically, they are found only when a patient experiences a complication after surgery, such as an infection, and efforts are made to find out why, he said. As many as one in three or four retained sponges may never be discovered, he added.

Unlike some complications in medicine, the surgical mistakes are "totally preventable," according to Dr. Makary.

And the costs?  The payouts themselves totaled $1.3 billion.  And that says nothing about additional health care costs resulting from dealing with these newly-maimed patients, most of whom never file suit.

I’d like to say one more thing about this. Back in February 2011, the American Academy of Orthopedic Surgeons published a widely-cited (and criticized) “survey” of about 60 or 70 (that’s it) Pennsylvania orthopedic surgeons.  The survey was not about errors being committed in operating rooms and the costs of these errors.  Rather, it was about so-called “defensive medicine” (unnecessary tests for the sole purpose of avoiding liability.)  But it turns out that the most prevalent and expensive tests - MRIs - were being done for many reasons other than liability avoidance, like the fact that insurers were requiring MRIs before they would approve surgery.

I am sick of whining surgeons who participate in surveys like this, the sole purpose of which are to provide lobbyists with ammunition to run around legislatures seeking laws to limit compensation to injured patients, and make it more difficult to bring cases, providing a windfall for their insurers. And less accountability for errors.  Enough.  Enough.

Some say the solution is to fine hospitals more severely for these “never events.”  But here’s what a friend of mine suggests.  What if hospitals and medical societies stopped spending millions of dollars a year lobbying to limit the recovery to malpractice victims, and devoted that money instead to patient care?  And how about a law that would double every jury award when a “never event” caused the injury– a meaningful penalty where the money goes to the person actually injured (instead of a fine, where the money goes who knows where?)  And stop demonizing injured patients and their attorneys.  That would be a start.