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Gibson Vance

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Bill Falls Short on Protecting Patients

Posted: 05/11/11 06:59 PM ET

A study released last month found that one out of every three hospital patients encounter a medical error. Previously, the Institute of Medicine found that as many as 98,000 people die every year from preventable medical errors, the equivalent of two 737s crashing every day for a whole year. Since that time there has been much talk about improving patient safety, but as recent research suggests, not only has little improvement been made, but the problem is much worse than previously thought.

Today, the House Energy and Commerce Committee will markup the Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 2011 (H.R. 5). Instead of focusing on protecting patient safety by preventing medical errors, H.R. 5 gives Washington the power to impose severe, one-size-fits-all caps on damages that injured patients can seek -- not just when injured by medical negligence, but also by defective drugs, medical devices or abuse suffered in nursing homes. It even extends this cap to health care providers that intentionally harm or kill patients, as well as insurance companies that refuse to pay just claims for medical bills.

Essentially, this bill would take away the rights of injured patients, remove incentives to improve safety and leave more people at risk for more injuries from negligent care.

Consider the case of two-year old Malyia Jeffers, whose life will never be the same after a lengthy wait in a California emergency room. Despite her father's insistence that she be seen by a doctor, the hospital staff kept the family waiting over five hours when finally, a physician took blood samples showing the young girl to be in liver failure. By the time she was flown to a nearby hospital, Malyia was in septic shock and doctors had to amputate her lower legs and her left hand.

Because of the delayed treatment, the lives of Malyia and her family will never be the same. And if the Jeffers' decide to pursue justice in court, tort reforms already passed in California would cap their damages at $250,000 -- an amount that will hardly cover the care Malyia will likely need in coming years.

H.R. 5 is modeled after California's 1975 tort reform legislation -- Medical Injury Compensation Reform Act (MICRA). Instead of lowering physician's insurance premiums, for the first 13 years after MICRA was enacted, premiums rose 450 percent and only decreased after a ballot initiative was enacted into law that included a mandatory premium rate rollback. MICRA did nothing to ease the cost of malpractice insurance premiums and MICRA did nothing to prevent Malyia's injuries. In fact, this legislation may only make it more difficult for her to obtain legal recourse.

If H.R. 5 passed at the federal level, it would intensify the burdens on patients and their families, ultimately leaving them to find other ways to pay for medical costs caused by the health industry's negligent or reckless acts. In most cases, the costs would fall on the rest of us through higher taxes and higher health insurance premiums. Meanwhile, the health industry would not be held accountable for negligent behavior -- nor would it have any incentive to improve patient safety.

Proponents of H.R. 5 are notorious for launching misleading or inaccurate claims about the medical malpractice system, especially since the real facts tell a much different story. For example, a study conducted by researchers at the Harvard School of Public Health found that most malpractice claims are meritorious, with 97 percent of claims involving medical injury. There is also little evidence supporting the notion that capping the amount injured patients can receive will control health care costs.

The last thing our health care system needs right now is less accountability. The civil justice system not only provides recourse for injured patients and consumers, but also spurs innovation and systems that prevent these injuries from happening again.

Instead of protecting wrongdoers, Congress should focus on reducing deaths and injuries. Preventing injured patients and their families from seeking recourse will do nothing to lower health care costs. Reducing medical errors means lower costs, fewer lawsuits, and more importantly will save lives.

Congress must put more important priorities, like patient safety, first. H.R. 5 certainly is no answer to addressing the real problems in America's health care system.

 

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