Too many people are dying of medical malpractice, or in dangerous nursing homes, or after being implanted with unsafe medical devices - because not enough people are suing. There I said it. Not enough lawsuits. Preventable death is what happens when accountability is weakened and information stays hidden. And politicians who kowtow to the insurance and medical lobbies are mostly to blame for this. And I’m sick of it. I’m sick of whiny insurance companies, sitting on boatloads of money while they raise rates on doctors and then falsely blame injured patients who rarely file lawsuits. Yet insurers still work to take away their rights.
I was reminded of this recently as the fog of COVID health care immunity laws began to lift and articles started surfacing about the ongoing state of patient safety.
Preventable Medical Errors are Rampant
Medical harm is “so widespread, so frequent, so massive, and so continuous that it rarely makes headlines,” wrote authors Michael Saks and Stephan Landsman recently in STAT (based on their new book). Put another way,
Death by medical error or accident is the nation’s leading cause of accidental death, exceeding all other causes of accidental death combined. Medical error and accidents kill approximately as many people each month in the U.S. as Covid-19 did before vaccines became available.
How have states responded? But stripping patients of their legal rights and then looking the other way, leaving patients to die. Take Dr. Death in Texas, one of the rare cases that actually did make headlines and even more unusually, has received Hollywood attention. Billy Corriher wrote in Facing South:
"Dr. Death," a new drama on NBC's Peacock that was inspired by a true story, offers a disturbing look at the life of an incompetent Texas neurosurgeon named Dr. Christopher Duntsch, played by Joshua Jackson, and the patients he maimed.…
In the sixth episode, the show lays out how Texas law makes it nearly impossible to sue health care providers, meaning there's little accountability for negligent care or hiring decisions. A widower named Earle Burke, played by Grainger Hines, says that "no lawyer would take up the case" against Duntsch because of Texas' "tort reform" laws that make it harder to sue negligent doctors.
Nearly half of all medical errors are preventable. In other words, a large chunk of patients (44%) would have a case if they could – or wanted to - go through the time, trouble and expense of going court. Yet almost no one sues. If they do decide to go to court, it’s extremely hard for patients to win these cases. And even if they do win, injured patients are generally severely undercompensated. (Lot’s of studies about this here.) And to top it all off, medical lobby groups have such control over public officials that even the worst, most incompetent physicians practice with impunity.
Nursing Home Infection Controls Are STILL Bad
Could there be anything more tragic than the lack of COVID (and other) infection controls in nursing homes? Yet deadly COVID is still a problem as too many staff members remain unvaccinated. If only a strong civil justice system were available to ensure some accountability for nursing home negligence. But between dual “get out of jail free” cards of (COVID-related) legal immunity laws passed in most states and forced arbitration clauses used by most nursing homes, patients and families are faced with enormous legal hurdles if they try to hold a nursing home accountable for making these frail residents live in lethal Petri dishes.
Implanted Medical Devices Are A Horror Show
A new ProPublica article exposes a problem that actually is shockingly common: defective implanted heart devices that are allowed by the Food and Drug Administration (FDA) to go horribly wrong, and leaving patients (and surviving families) with neither medical nor legal recourse. This particular piece is about the HeartWare Ventricular Assist Device, or HVAD. As ProPublica writes,
The HVAD was implanted into more than 19,000 patients, the majority of whom got it after the FDA found in 2014 that the device didn’t meet federal standards. By the end of last year, the agency had received more than 3,000 reports of patient deaths that may have been caused or contributed to by the device.
But the FDA repeatedly failed to insist that the manufacturers, HeartWare and Medtronix, fix the devices’ problems. Even worse,
Patients with HVADs have little choice but to hope the devices keep working: The surgery to remove HVADs is so risky that both Medtronic and the FDA advise against it. The device is meant to be left in place until its wearer gets a heart transplant. Or dies.….
There are [] few documents available in state courts about faulty products, because of restrictions on lawsuits related to medical devices. The restrictions date back to a 2008 Supreme Court decision in a case against Medtronic. The court found that U.S. law bars patients and their survivors from suing device makers in state court, essentially because their products go through such a rigorous FDA approval process.
Congress has still not fixed the law to provide patients with defective heart implants some opportunity to go to court, get compensated, and hold medical device companies accountable in ways the FDA has so miserably failed to do. But sadly I suspect we may be waiting a long time.