A little-noticed proposal in the President's budget managed to squeak by without a ripple in the media, or comment from savvy political pundits and progressive activists. The President is offering $250 million dollars over four years to the states to test ways to curb medical malpractice tort, further denying the rights of victims to seek justice and redress for medical malpractice. Our President appears to have bought into the conservative flim-flam of frivolous lawsuits and lottery-sized payouts, both of which are non-existent. Even though this issue has been buried for decades, what better time to resurrect it than now, since the budget and deficit are on the minds of all those newly minted deficit "hawks" in DC?
If we're going to have one of those "adult conversations" on this issue, Mr. President, then we need to look at what is the real contributor to the impact medical costs have on the deficit. Congress and the medical community are in denial when it comes to the great harm and costs medical malpractice and in-hospital adverse events from drug reactions, infections, surgery, unnecessary procedures, etc. impose on our health care system, while also inflicting pain and suffering on a generally unsuspecting public. Millions of victims have been invisible and voiceless for too long, with no massive protests in the streets and few advocacy organizations speaking for them, with one notable exception: Public Citizen and its Health Research Group, which has been fighting for patient safety for decades, researching the system's failures and offering up solutions. Public Citizen has been instrumental in removing some of the most dangerous drugs from the market, and their book "Worst Pills, Best Pills" (http://worstpills.org/) by Dr. Sidney Wolfe, Director of their Health Research Group, is an invaluable resource for all who care about their own health and safety.
So, why has there been no massive outcry for change? One reason is that I believe the victims of malpractice suffer from Post-Traumatic Stress Disorder. The betrayal of trust by a doctor leaves mental and emotional scars that do not fade, and the trauma of an avoidable injury, maiming or death of a loved one can sap the strength and resolve of the most resolute among us. The victims' minds are unfocused and unable to organize into a fighting body that can take on the system. Flashbacks can linger for years, even decades.
So what has tort reform to do with our health delivery system? Nothing. It has been a diversion that prevents us from dealing with the terrible truth that when we see a doctor or enter a hospital, there is nothing in place to protect us. Just last week, ABC World News reported about hip, knee and heart valve replacements leaking dangerous chemicals into the bodies of their recipients, including cobalt - yet another example of the FDA failing to protect us and another of the near-daily healthcare horror stories we hear about.
It is our healthcare delivery system that needs an overhaul, not just tort. We must change from a "sick-care" system to a real healthcare system. The "free market" of healthcare delivery fails us on every level. For heaven's sake, even Justin Bieber refers to our healthcare system as "evil," due in part to its being unaffordable. He is Canadian, so he knows what a healthcare system can deliver, noting that in Canada, if you're sick, you just go see the doctor. How simple.
To truly deal with this crisis, there are three main issues that must be addressed:
1. How healthcare is financed and payment is delivered to doctors, hospitals and other providers
2. Tort reform that focuses on overhauling the legal system that addresses medical malpractice
3. Regulation
As Public Citizen recently noted to its membership, "(P)reventable medical errors hurt millions of Americans every year. Many suffer unspeakable pain, become disabled, lose their livelihoods, sometimes even lose their lives, because of these medical errors." 250,000 Americans die each year due to those errors, and close to 900,000 deaths in total per year come as the result of unnecessary surgery, hospital-acquired infections, adverse drug reactions, medical errors, even bedsores. From adverse drug reactions and medical malpractice alone, the number of deaths was 420,000 in 1997, as reported by Dr. Lucien Leape of Harvard. If this isn't a crisis, I don't know what is. The pain and suffering is enormous, and so is the financial cost. It would be reasonable to assume that at least $200 billion or more per year is added onto our national healthcare costs as a result of these errors, and we can anticipate these numbers will continue to rise yearly unless there is intervention and some serious changes begin to take place. Safety must become the major priority, instead of profits. A priority shift is imperative.
Addressing this crisis is one way, Mr. President, of cutting back on the cost of healthcare in America. Your healthcare reform bill will be delivering another 32 million people into the same bloated, unsafe system that exists today. Can any of us recall the last time we read an article about patient safety? This is forbidden fruit to a humungous industry that, according to 2008 statistics from the Bureau of Labor Statistics within the Department of Labor, provides 14.3 million jobs for wage and salaried workers among 595,800 establishments that make up the health industry. Between 2008 and 2018, 3.2 million jobs will be added to this industry, which is one of the fastest growing, thanks in part to those aging boomers. With these numbers, we can understand why the status quo and special interests hold reign. If any other industry had such appalling safety records, they would be shut down. When was the last time we heard "FIRST, DO NO HARM?" Hippocrates must be rolling in his grave.
In truth, the real impact of litigations on our total healthcare costs is a mere 0.55% (Medical Malpractice Claims Negligible, by J. Robert Hunter, Consumer Federation of America in Dispatches in the September 15, 2009 issue of The Progressive Populist) with very few victims even bringing suits against doctors or hospitals. And if there is a settlement, it averages about $42,000 - hardly hitting the lottery, especially with legal counsel collecting 1/3 plus expenses and the insurers (including Medicare) also seeking their share of any legal settlement to cover the costs of care for the injury caused by the malpractice in the first place. The litigation process can drag on for years, which also makes lawyers reluctant to take these cases to begin with.
How much could be accomplished if doctors and hospitals would step up to the plate and meet with the injured party or family of a deceased loved one, explain what went wrong and apologize? Chances are litigation could be avoided, which is what those few hospitals that offer this kind of doctor-patient sharing have discovered. It works. Unfortunately, many doctors find it too hard to admit making mistakes and displaying fallibility. Image-control is everything, and admitting healthcare providers can make mistakes appears to be too much to risk just to do what's right. But mandating doctors come clean would go a long way to resolving so much pain and suffering. This is something that must be addressed in medical school, instead of perpetrating a culture of "catch me if you can."
In 1999 the Institute of Medicine estimated that medical errors cost an estimated $17- $29 billion annually for lost income, lost household production, disability and healthcare. Adjusted for inflation, those numbers become $22.1-$37.7 billion today. The Department of Health and Human Services estimates the cost to Medicare at $4.4 billion per year for medical errors. It is abundantly clear that if we are to finally have a safe healthcare system - after decades of evasion, deaths and injury - we must overhaul the way care is delivered, which will create safer healthcare and, in turn, less malpractice, helping to reduce costs. After all, haven't we a right to expect safety and responsibility in the best healthcare system in the world?
Right now, the Judiciary Committee in the House is working on the tort issue, and a leading voice on the Committee is Rep. Phil Gingrey (R-GA), a former obstetrician who was sued 4 times for medical malpractice. He actually ran for Congress in 2002 and won while he was being sued. One suit was dropped, and the others settled. This man is writing key legislation that would severely cap malpractice settlements - little more than the fox building the henhouse. Apparently there is no such thing as recusing oneself due to a personal agenda in a Congressional committee. But, hey, since when is it news to mention a conflict of interest in Congress?
In 1999, the IOM's landmark study "TO ERR IS HUMAN" reported up to 98,000 deaths each year in the US from "doctors' errors." The study shook the nation. Today those numbers are considerably greater. It would seem that it is time for the IOM to revisit the numbers and also come up with positive solutions, joined by the agency that addresses quality in healthcare, the Agency for Healthcare Research and Quality (AHRQ). One of its missions should be to code every possible kind of medical error and other adverse events in hospitals and medical facilities, along with mandating the reporting of such events. Hospital accreditation is based on GOOD performance, so do we really know how much may be underreported? Bring in leading academic voices for safety, like Dr. Leape and Dr. Stanley Wolfe from Public Citizen, who has spent decades on this problem.
Additional ways to address this crisis could be the creation of a NATIONAL MEDICAL SAFETY BOARD, an independent entity modeled on the NTSB, with an advocate similar to Elizabeth Warren at its helm. We must also develop a new paradigm for the states' OPMC (Office of Professional Medical Conduct), which currently monitor doctors' performances and renders disciplinary action, but only after a complaint is registered. OPMC's are monitoring and reporting doctor misdeeds less and less, ineffective and reactive rather than being the preventive and proactive agencies they should be. An NMSB could chart regional doctors' errors in medical outcomes and then act as a consulting party to the states OPMC's and make recommendations to implement safety measures - a Federal/State dialogue and a unique partnership supporting patient safety. Another good start for the overhaul of all state OPMC's would be to recruit all of their Commissioners from the professional medical ranks, and not have them appointed by the Governors, which politicizes the post and contributes to their inaction and tendency to cover up and shut down cases following complaints.
Real solutions to all of the above could be addressed with the passage of H.R. 676, reintroduced last week in Congress by Rep. John Conyers (D-MI), an Expanded and Improved Medicare For All Act delivered by a single payer.
Mr. President, if you are serious about this issue - and you should be - I would be glad to bring a group of malpractice victims to the White House who will offer up serious, real-world solutions to this issue. They know first hand how the system has failed them. No "Lite" beers, however; only the real deal. Our talk might even include finally establishing a coherent National Health Policy, which is long overdue.
For much more on these issues, please go to www.citizens-for-medical-safety.com, www.citizen.org/medical-error-stories and my Huffington Post article story on Christina Zisa, a victim of this crisis, http://www.huffingtonpost.com/pearl-korn/in-memoriam-christina-zis_b_814356.html.
Please explain in your next comment what you mean by restorative practices? Think readers will be interested.
Check out my other posts on Tort Reform: An Elephant In The Room and Ending Fee For Service. Those were my first two pasts last year.
Besides determination, ingenuity, and integrity across the board - we need some test flights of creative ideas. We will get there,
Restorative practices is an emerging social science around the globe that assists in creating a culture that will allow docs & patients to unite.
I recently jotted down a simple blogpost for the "layman" about restorative practices in healthcare, You can view it here - http://jamessproject.blogspot.com/2011/02/wth-is-rp-or-rj-in-hc.html
I will be shairng much more info on it during patient safety awareness week on my blog.I will be sure to share the links here if you would like.
My son James died as a result of multiple preventable medical errors as a newborn. He did not die from anything he was born with.
We have the highed infant mortality rate among industrilaized nations. Yet, as we measure/compare the world's overall health by the infants - the infants are not worth a dime. Yet, James's bill was in excess of 750K (most of his medical treatment was AFTER errors). I refused the 750K settlement with gag clause and countered with my atty's fees and request for 5 minute conversation with one of the defendant docs. It was refused. I found out years later that doc never knew about that offer.
But, I can share what happened and donate the book I authored- "Split the Baby: One CHild's Journey through Medicine and Law" to med, nursing & law students." In it you can read about the conversation I did finally get with a couple of the docs.It was healing - for family & clinician alike. It is called restorative pratices. www.jamessproject.com
Your son's passing has inspired you to work for and create change in a health care system that woefully needs it. I will of course check out your James Project and commend you for your valiant work. You apparently hone in on those first early days of life when the entire life cycle needs scrutiny and protection. But I do understand why you have made those early days your priority.You refused settlement, a rather high number so we can certainly assume gross errors were made. And those gag orders are something I feel contributes to the perpetuation of these so called "errors" . Letting those cats out of the bag would help to curtail them by shining the necessary light on an appalling situation.
If I have helped and I hope I have to open up discourse on these egregious acts on a National level that is clearly my aim.Keep up the good fight with me Mary Ellen. we will continue to press these issues until safer health care is delivered to all of us. That is our right.
Congratulations on writing your book, and for sharing and enlightening. You are making a difference.
Ms. Korn, how can I reach you regarding a personal matter?
Please explain your last sentence further?
Can you indicate why you would like to reach me?
I just graduated law school in Arizona and am interested in improving the med mal system here. I do not know how I could be employed in this way.Do you have any ideas?
Thanks
Thanks for mentioning Michelle Mello, I will attempt to check out her work. If you have an email for her that would be great Scott.
MANY THANKS.
Pearl
Now lawyer Gupta, we both now that frivolous law suits are a myth. Why would victims and lawyers attempt to tie up years in a case that doesn't have a ghost of a chance of success in court?
Yes Doctors do order excessive tests but isn't greed a strong motivator for doing so also since they have been reduced to what I call factory piece workers. The more they do the more they get paid. Hey there are 7800 codes for services. Yes, to both of your questions. But it means over hauling the health delivery system and the legal system and we need strong Regulation.
Thanks very much for joining in. I hope that the door is being opened at long last to some intelligent conversation about these issues.Am sure that we agree we need a safer and better health care system.
The very reform he is pushing for in his budget proposal would work well with a national health polcy. I'm giving him a chance on this issue.
The President, in offering those $250 million to curb tort and may as well be saying caps. And he is not pushing for reform of the tort system, which you mention and he doesn't.That is exactly what he should have proposed, but didn't.
Your belief and trust in the President is commendable, but I wouldn't hold my breath. Keep your eyes open on this issue Scott and watch where he goes with it.
As an E.R. physician, I do think that you minimize the threat that hangs over us as providers, and the short-sightedness of the current system. As physicians, we all know horror stories of "attorneys gone wild", frivolous suits that have brought providers needless pain. Perhaps you're right that such suits are few, but I'm aware of several in my little corner of the world, and even one such suit serves to promote over-testing by all physicians. As a society, we must decide what levels of risk are acceptable to us-- Evidence-Based Medicine suggests that I needn't order an EKG on every anxious 20-year old with "chest pain." But if there is a 1 in 10,000 chance that an EKG would provide valuable information, should we spend the resources to obtain the 10,000 EKG's? If we don't, then we miss the "needle in the haystack"-- and when that "needle" gets missed, what alternatives should be available to the loved ones of a dead 20-year old? These are difficult, philosophical questions, but we really must come to grips with them, as we (eventually!) develop a system of National Health Care.
I in no way meant to short sell doctors and their painful experiences with med mal. They must however take some responsibility for going along with a failed system that injures them as well as their patient and prevents top level medicine from being delivered. It is a rat race for doctor and patient.
The concept of the doctor/patient close relationship must return. But the musical chair atmosphere of a different health insurer and different doctors in or out of net work each year prevents that.
There isn't I suspect enough evidence based medicine that would prescribe the necessary testing for certain suspected illnesses. Your analogy of the 20 year old given an EKG seems extreme unless symptoms other than anxiety are present. The possible ,what ifs are endless, exploring that needle in the haystack.I suppose that is where the art of medicine comes in?
We clearly have much to talk about. Including a national dialogue on these questions which could be answered under an Improved and Expanded Medicare For All. This free market approach to medicine fails and must go. Too long have these issues and questions been swept under the rug. It is more than time for an airing. More than anything we need a health care policy.
The truth is that far too few injured victims can access our system let alone be compensated. The few that are compensated often have to wait 3-5 years. Plaintiffs attorneys are paid on a fixed percentage contingency fee per case. Thus they carefully pick and choose the most lucrative cases. They then spend years trying to squeeze every last dollar from each case. In so doing they eschew too many injured victims who have legitimate complaints.This has happened to 2 relatives of mine and they were elderly. Their families deserved some compensation and their physicians should have been held accountable but were not.These individuals were victims of a medical justice system that has its priorities screwed up.. .We need a medical justice system that would allow more cases to be heard more quickly and reliably.
PresidentsObamas plan will remove individual highly paid medical experts, paid for by the plaintiff and the defendant, from the equation. These biased experts too often stretch the truth on what constitutes the standard of care in a given case. This creates uncertainty in the minds of physicians, causing them to order unnecessary tests(cat scans, bloodwork, painful biopsies etc) to medicolegally protect them in the event of a bad outcome. This is unfair to patients and costs the system billions each year.
Specialty medical courts as used in Germany is one solution. More effective would be to reduce these adverse medical events to begin with. REGULATION is the key in how health care is delivered.We could also start with overhauling those Risk Management Offices in every hospital in place to protect the hospitals and doctors. In short a systemic change is needed that deals with health care delivery and the court system. Both which clearly fail.
Let the dialogue begin on change in health care and the creation of a NATIONAL HEALTH CARE POLICY.
By the way there is no standard of care and that is another issue Scott. It is considered science and ART. The expert witnesses are not responsible for those extra tests performed by doctors. It is simply their fear of litigation. We must help them remove that unfounded fear since the numbers who sue are tiny. No doubt a myth fostered by the med mal insurers.
You do however seem to down play the role doctors play in all of this however. After all their blue wall of silence perpetuates these horrible events that shatter lives and families. They most be a part of the solution, and yes whistle blow on colleagues who injure, and worse..They must step up to the plate and push for real reforms and be a part of that solution. If not they collude by turning a blind eye and being un responsive.
Thank you for your input and very kind words. I am hopeful that perhaps this post will open serious dialogue on the needed overhaul of a health care system that in general fails us all.
What most people don't realize is that when a patient is injured, the burden of costs shifts from med. mal. insurance companies to employers and taxpayers.
Employer short term disability, vacation, & sick-time benefits and public assistance like Social security disabilty, Medicaid, unemployement benefits, etc. are all programs that keep injured patients afloat until they can be compensated (if ever). The truth is that the deck is stacked heavily against injured patients in favor of medical malpractice insurance companies.
Legislation should be guided by evidence: malpractice lawsuits & payouts have declined in spite of more patients being injured not only by providers but 'managerial malpractice' (hospital leaders who fail to invest in patient safety.)
It is incomprehensible that the dialogue around this issue does not include a serious discussion of compensating patients for their injuries swiftly and appropriately on a national level.
We have homeowners insurance, workers compensation, travel/flight insurance, auto personal injury insurance------but NOTHING for injured patients. They are left alone to deal with the long term physical, emotional, and financial damages they face at the expense of providers and hospitals who feel they should remain immune from liability for harming and/or causing the untimely death of their patients.
We do need that "adult conservation" about these matters on a federal level with our President acting like a grown up and leading the charge on this from his bully pulpit.
MANY THANKS.
I wrote this post because of its need and that so little is ever written about these issues. And our President and Congress are clueless about the real severity and numbers involved. A true crisis that must finally be addressed.
I hope that you an all of the other victims who read this post will also go to the link for Public Citizen who is collecting these stories and indeed will know who to send them to.
You are a beautiful example like Rosario in the preceding comment. Both of you will never be silent and as a result make a difference every day. Each voice does matter.
Why not contact healthcare-now.org and see if you can speak at any of their gatherings. They are a nation wide org. devoted to single payer and your story, like this post lays out the reasons we need to change from the failed system of health care delivery we now have and get rid of the greed that kills and go IMPROVED AND EXPANDED MEDICARE FOR ALL.
Also try PNHP.org
Thanks for your courage and keep speaking out and I will keep on writing and pestering members of congress.