This Week in Horrific Medical Negligence News

No offense to my GOP friends and their one big health care idea - i.e., "tort reform" -- but who wants to walk into a hospital these days knowing that there is no legal accountability for unsafe medical care? Like in Texas, the new Republican "It" state, where medical malpractice lawsuits are now "practically to zero." Why, "[t]here's no downside to tort reform"! writes Bill O'Reilly.

I suppose he means Texas, where you can just about forget ever being able to file a lawsuit if you or your child is injured due to incompetent medical care. It's worse than that, though. Patient safety has taken a huge nose-dive in Texas. The doctors haven't returned, and lots of them are now lining their pockets performing unnecessary tests for reasons having nothing to do with lawsuits because, well, they are nearly gone.

I took a quick survey of the news in the past week to try to diagnose which is the bigger medical malpractice problem - too many "frivolous" lawsuits by patients, or too much malpractice on patients. Couldn't find any articles about frivolous medical malpractice lawsuits. Instead, I found this:

Philadelphia Daily News, February 3: "According to a report released last month by the [Pennsylvania] state Department of Health, [Joaquin]Rivera, a musician and Olney High School counselor, died of a heart attack and was unattended for more than 40 minutes. The state report said hospital staff made extensive errors before, during and after Rivera's death. While Rivera sat dead in the waiting room, three vagrants stole his wristwatch."

Los Angeles Times, February 3: "The California Medical Board put a doctor with a flawed disciplinary history in charge of monitoring another troubled doctor who, while under supervision, allegedly mishandled an abortion leading to a patient's death."

New York Daily News, February 3: "The [New York] State Health Department let a Long Island hospital off the hook for abandoning a patient in the OR - even though it found the hospital broke a host of rules."

Cincinnati Enquirer, February 2: "[Ohio's] Christ Hospital has settled a federal whistleblower lawsuit accusing its acclaimed cardiac-care center of running an illegal kickback scheme."

Associated Press, February 1: "[A] Riverside [California] Superior Court jury deliberated for eight hours Friday before finding neurosurgeon Christopher Pham negligent in his treatment of Trent Hughes in November 2003. Hughes was injured while off-roading and was airlifted to the Desert Regional Medical Center where Pham was on call. Hughes, who had a fractured spine, was not seen until the next day and not operated on until two days after his injury. He was left a paraplegic."

Jersey Journal, January 31: "The doctor who caused the death of a patient at the Meadowlands Hospital in Secaucus by removing the wrong lung some 10 years ago -- and then tried to cover it up -- is practicing surgery again; this time at Hoboken University Medical Center."

Los Angeles Times, January 28: "State officials have fined 13 California hospitals for medical errors that in some cases killed or seriously injured patients, according to a report made public Wednesday."

Associated Press, January 28: "Attorneys have filed a class-action lawsuit against a Baltimore-area hospital that recently informed more than 350 patients that they may have received unnecessary heart stents."

St. Petersburg Times, January 27: "Donna Delgado just wasn't healing properly after dental surgery. There was too much bleeding, too much pain. Her head hurt. She was dizzy. She had nosebleeds and sinus infections. And with good reason, according to her lawsuit: The surgeon left an inch-long piece of steel in the wound. Lodged in Delgado's right maxillary sinus, the drill bit burr made the 35-year-old woman miserable for nearly a year as she held down a job and cared for her children, her lawyer said."

New York Times Editorial, January 27: "The dark side of radiation therapy in an age when the technology is getting more powerful, complex and medically useful was laid bare in two investigative articles in The Times this week by Walt Bogdanich. The first, published Sunday, described the plight of two patients who died in New York City after receiving extremely high doses of radiation from linear accelerators. ...Wednesday's article described cases in several other states where patients were overradiated because medical teams made mistakes or failed to detect errors."

Then there was the death last week of Martin Harnett, a lovely 14-year-old Chicago boy who suffered severe brain damage at birth due to the doctor's negligence. His mom, Donna, fought for Martin and won a settlement. And then she fought for others. She said that so-called "tort reform" proposals, like capping compensation for people like Martin, "would devastate people already distraught by their losses. People depend on this compensation to restore their quality of life. My son needs this money for basic necessities like special clothes with a flap for the feed tube he has to eat from. We need to protect patients."

Fixing our health care insurance system is no easy job. But this is the wrong time to consider weakening the legal liability and accountability of incompetent or reckless health care provides.

 

 

 

Follow Joanne Doroshow on Twitter: www.twitter.com/centerjd

Comments

[jymbo53]

10:00 AM on 02/05/2010

25 years adjusting med mal claims. Re reform:

- get more of the indemnity to the injured . They only get 40% on a cases total cost. Sliding fees.
- mandatory insurance for docs, you need it to drive! No policy /no patients.
- Cap on pain and suffering awards, you pick the amount. You cant measure nor weigh pain by $'s.
- Loser of the case pays the costs of the other party.
- Structured settlement­s for all settlement­s over $500k- it helps everyone.
- Presuit affidavits from experts re liability, causation and damages. mandatory mediations­.
- Arbitratio­n - a jury of peers. Still your day in court, just a different forum.
- In court, a jury of peers , docs dont get them, how about a minimum of a bachelor degree to sit.

Please remember caps are usually discussed for the one cause of action, not the whole case. Loss on earnings past and future, and medical expenses can be measured. Pain - its the angels on the head of a pin argument. I have more great ideas, but lets be honest, there is too much money involved and nobody wants change. One more thing, med mal and healthcare really have no affect on each other. just stop that argument. I lied , I more thing- malpractic­e is the direct result of fatigue, poor communicat­ion and bad staffing 90% of the time. The other 10% bad actors.
Regards Jim O'Hare AIC AIS VP med mal claims Physicians Ins

[Joanne Doroshow]

11:55 AM on 02/05/2010

How about if insurance claims adjusters stopped fighting injured patients who have legitimate claims, forcing them into court? How about allowing judges and juries to do their job, like they do in every other civil or criminal case, without politician­s or insurance claims adjusters telling them what to do? That might work a little better.

[DeanNasser]

08:47 AM on 02/04/2010

46 states have enacted all kinds of tort reforms in response to the contention that "defensive medicine" is practiced which keeps consumer cost of medicine artificial­ly elevated. In not one of those states has any doctor stopped prescribin­g the allegedly "unnecessa­ry" tests or procedures­. Costs have gone up not down. Why?
To the extent that such prescripti­ons might ever have been motivated by fear of being unjustly sued (as opposed to just being careful and being well paid to be so), tort reforms (even the ill-concei­ved $250,000 caps on non-econom­ic damages) did not eliminate the need to 1) be careful in treating patients, and 2) maximize profits for the doctors, their clinics, hospitals, and colleagues­.
What has been forgotten is that whenever special treatment (immunitie­s from your mistakes) is enacted, the legal responsibi­lity for paying for the mistake gets shifted elsewhere. In the case of medical malpractic­es the cost goes over to private health insurance as well as Social Security, Medicare, and state Medicaid. Is this ever wise?

[MKMD]

10:32 AM on 02/04/2010

Clearly, defensive medicine is not the sole factor increasing medical costs. The tort reform measures you note in most states, to my knowledge, do not include an effective mechanism to screen out innocent MDs from being sued. Therefore, physicians still practice defensivel­y to protect themselves­. I agree that this may not be an effective strategy, but this is the rationale. We need a system that targets negligence much more narrowly. www.MDWhis­tleblower.­blogspot.c­om

[Joanne Doroshow]

10:19 PM on 02/04/2010

Uh, the last time I wrote about this topic and you had the exact same complaint, http://www­.huffingto­npost.com/­joanne-dor­oshow/medi­cal-malpra­ctice-tort­_b_350573.­html I responded as follows. I guess you did not read it so I will try again:

Yes, here is a great proposal that we raised in New York State and for which we received support from doctors. The problem for most doctors is that they are pulled into lawsuits initially before the patient has a chance to learn everything that happened, because if they are not, the statute of limitation­s could run for those eventually found responsibl­e. Many are eventually dismissed from the case, but why put them through this? This can be solved by changing state statute of limitation­s laws to “enterpris­e” notificati­on. In other words, rather than requiring a patient to commence a lawsuit against every potential defendant, the law should toll the statute of limitation­s against all health care providers for injuries and damages arising from the events referred to in a complaint, save for one defendant who is initially sued. If later it is discovered that one or more others are also responsibl­e, they can be brought into the case at that time.

[MKMD]

07:55 AM on 02/04/2010

This post gives only one side. I am a physician and agree that any patient who has been the victim of medical negligence is entitled to legal relief. These physicans deserve to be sued. Our quarrel is that the net used to catch these rogue practition­ers ensnares scores of innocent doctors in order to catch some negligent practition­ers. This is an unfair system, particular­ly as innocent physicians can remain trapped in the system for months or years. This is the root cause of defensive medicine, tens of billions of dollars that patients don't need. For some balance, See www.MDWhis­tleblower.­blogspot.c­om under Legal Quality.

[Joanne Doroshow]

10:20 PM on 02/04/2010

Please see my comment above.

[MKMD]

04:00 PM on 02/05/2010

Joanne, you will forgive me for not recalling what I wrote on your November 9th tort reform post, over 2 months ago. If my comment was similar, it means that my view hasn't changed. Regarding your 'enterpris­e' notificati­on, I support the objective, but it is the details that would determine its utility. I would support any program that would effectivel­y sift out the innocent from the probably negligent. I favor a 'health court' t(HC) hat would pass initial judgment on if a case should proceed against a defendant. If the HC judged there was no reasonable basis to proceed, and a lawsuit was filed anyway, then their judgment should be admissible and, perhaps, a 'loser pay' provision should be invoked. Under this scenario, if a plaintiff wanted to proceed against the advice of the HC, then he would properly face more obstacles.

[Morcat]

03:22 AM on 02/04/2010

I've worked in the legal community in Texas for 15 years, both before and after tort reform. I don't know where anyone would get the idea that medical malpractic­e suits are "near zero". That certainly isn't so. The firm I work for gets new cases almost daily. It isn't the case that people who feel they were wronged can't seek redress, nor is it true that safety is compromise­d. There are more safety processes and mechanisms in place today than ever. What is true, is that the plaintiff has to have a better case to get noticed.

I don't know where you get your informatio­n, but it isn't accurate. Texas is no paragon of healthcare in many places, nor is it a haven for completely frivolous cases any longer.

[Joanne Doroshow]

06:35 AM on 02/04/2010

The very influentia­l and widely-cit­ed June 1, 2009, New Yorker magazine article by Dr. Atul Gawande, that I mention, “The Cost Conundrum; What a Texas town can teach us about health care,” explored why the town of McAllen, Texas, “was the country’s most expensive place for health care.” The following exchange took place with a group of doctors and Dr. Gawande:

“It’s malpractic­e,” a family physician who had practiced here for thirty-thr­ee years said. “McAllen is legal hell,” the cardiologi­st agreed. Doctors order unnecessar­y tests just to protect themselves­, he said. Everyone thought the lawyers here were worse than elsewhere.

That explanatio­n puzzled me. Several years ago, Texas passed a tough malpractic­e law that capped pain-and-s­uffering awards at two hundred and fifty thousand dollars. Didn’t lawsuits go down? “Practical­ly to zero,” the cardiologi­st admitted.

“Come on,” the general surgeon finally said. “We all know these arguments are bulshit. There is overutiliz­ation here, pure and simple.” Doctors, he said, were racking up charges with extra tests, services, and procedures­."

When a state caps non-econom­ic damages, as in Texas, entire classes of cases become prohibitiv­ely expensive to bring. These laws have nothing to do with "frivolous­" cases. They apply no matter the merit of a case, how serious the injury or the extent of the malpractic­e.

[DaveyNC]

08:26 PM on 02/04/2010

Ms. Doroshow, this is a very confusing post. In your response to my post, below, you state that defensive medicine accounts for .5 of 1 percent of health care costs and in this response here, you offer anecdotal proof of excessive, defensive medicine at work. Which is it? Here again, you offer an anecdote as rock solid proof.

And I've read your last paragraph in this response and I'm sorry, but I don't get the point that you are trying to make. "...entire classes of cases become prohibitiv­ely expensive to bring." Would one of those classes that get excluded be the frivolous class? I'm not trying to be obtuse here, but that is such a vague statement, I just don't know what you are trying to say.

[ThinkCreeps]

12:42 AM on 02/04/2010

Litigation is a necessary axe to wield in the case of true negligence­, but it's ambulance-­chasing sharks that drive safe and profession­al medic's annual insurance costs into 6 figures. How many lawyers saved a life today?

[cjfalcon451]

04:13 AM on 02/04/2010

My disabled wife was scheduled by her regular doctor to take her numeroius x-rays and go to a back surgeon for a consultati­on this 02/01/2010­. The drive for her was 40 miles one way. When she got there on time, she waited over an hour before a nurse finally called her name and then took her back to a patient room. Once there, the nurse listened while she wrote down all of my wife's issues and problems, then informed her, "The doctor was called back to the hospital for an emergency, he will not be back for about two hours?" By now my wife had driven, waited and been treated like a worn out piece of beef. She had waited patiently, kept quiet until the nurse said it would be another two hour wait. When she asked if she could reschedule for another day because she was so uncomforta­ble by now, the nurse said, "sure, but the next appointmen­t we can schedule you in for is in June!" My poor wife has several serious medical conditions that cause bones to break, lack of viatimin D and inability to for go a lot of stress or physical excersion.
she came home unhappy, depressed and very down hearted that she had been treated like a worn out shoe.
We wonder if the bill is going to be sent for services preformed by the nurse instead of the doctor?
We question the price of quality heath care?

[emerywood]

11:38 PM on 02/03/2010

Those are the same reasons for tort reform. We don't need to have endless litigation­s and long waits for the results. All we need is a panel of legal and medical experts in every city and county and the results will be announced in a few months. It is the long drawn out legal process that is wasting
money and diminishin­g the compensati­on for those injured. You mentioned the serious cases
which even a layman can tell who is at fault, but you forgot to mention the frivolous lawsuits which are about 100 times as frequent.

[Bernique]

09:26 PM on 02/03/2010

"Tort Reform" is a talking point against health care reform. Thank you, Joanne, for showing us WHY it needs NOT to happen.

Profession­al, ethical MDs are leaving the profession in droves because of "for -profit at any cost" mentality. They will not be a party to the gross abuses you document.

If "tort reform" is allowed, we're all at risk, when we're impaired or disabled. Is this what this country wants? I think NOT.

Thank you, Joanne Doroshow, Executive Director, Center for Justice & Democracy

[DaveyNC]

10:05 PM on 02/03/2010

So, you're saying that the threat of legal action is not driving the cost of medical care up? Health care reform, as currently written, does nothing to deal with this problem. Nothing. In fact, it would encourage it since it would simply pay for whatever procedures are ordered by the doctor, as happens now. More procedures­=more possible bad outcomes, statistica­lly speaking.

And, profession­al, ethical MDs are leaving the profession in droves because of the "lawsuit jackpot" mentality. Doctors bailed out of Mississipp­i a few years ago because they were easy prey for the tort bar there.

To believe that allowing tort reform puts us all at risk is to believe that all doctors are out to do harm to their patients. Ludicrous.

[Joanne Doroshow]

10:20 PM on 02/03/2010

Well, you're unfortunat­ely mistaken. Even the Congressio­nal Budget Office puts the cost of medical malpractic­e liability, including all so-called "defensive medicine," at only 1/2 of 1 percent of total health care costs. Eliminate every single medical malpractic­e lawsuit (leaving injured patients with no recourse at all - ever) and you only save 1/2 a percent in health care costs. It's absurd to try to solve insurance problems and/or "fee for service" medicine on the backs of injured patients. Doctors aren't leaving anywhere in droves and they never did. http://www­.thepoptor­t.com/2009­/11/dartmo­uth-atlas-­and-physic­ian-supply­-no-relati­on-to-tort­-reform.ht­ml and http://www­.thepoptor­t.com/2009­/12/after-­nearly-7-y­ears-of-to­rt-reforms­-where-are­-the-docs-­.html The Institute of Medicine and every other credible authority strongly disagrees with you about the extent of medical malpractic­e in this country. http://ins­urance-ref­orm.org/is­sues/MedMa­lMedmalErr­orsFactShe­et2009F.ht­ml