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Texas Tort Reform is NOT a Model for Nationwide Health Care Reform

Mike Ferrara — Mon, 07 Sep 2009 20:24:15 GMT

Tort reformers like to talk a lot about how the threat of malpractice suits raises health care costs by forcing doctors to practice “defensive medicine”—the ordering of unnecessary tests, procedures, and prescriptions in an attempt to protect themselves against a possible negligence lawsuit.

In a 2008 AMA survey, they remind us, a majority of the doctors who responded admitted to practicing defensive medicine—a number that translates, the AMA calculated, to $1.4 billion more spent annually on health care. If our doctors weren’t threatened into doing this, we’d all save loads of money and our national health crisis would be over.

Are the tort reformers right? Well, let’s look at Texas. Several years ago, the state passed a stringent medical malpractice law that capped awards for pain and suffering at $250,000, and brought the number of malpractice lawsuits down dramatically.

So the cost of health care in Texas must also be down, you suppose, since doctors don’t face the same malpractice threats as the rest of the country. Eh, No. In fact, Texas is home to three of the top ten most expensive cities in the country to receive health care: McAllen, Harlingen and Corpus Christi. In each of these cities, every Medicare patient is costing the country more than $10,000 a year (a couple thousand more than the national average).

So if defensive medicine against the threat of malpractice suits isn’t driving up costs, what is?

Harvard Medical School surgeon Atul Gawande got a candid answer to this question from a general surgeon in McAllen, Texas:

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

The surgeon came to McAllen in the mid-nineties, and since then, he said, “the way to practice medicine has changed completely. Before, it was about how to do a good job. Now it is about ‘How much will you benefit?’ ” –Atul Gawande, The NewYorker

While tort reform like Texas' won't improve the cost of our health care, changing our charge-per-service structure just might.

Originally posted at InjuryBoard by Mike Ferrara

Just How Much do Malpractice Suits Raise Health Care Costs?

Mike Ferrara — Thu, 16 Jul 2009 22:22:45 GMT

A succinct op-ed in The New York Times earlier this week by UPenn Law School professor Tom Baker made some terrific points about medical malpractice, and the expensive malpractice insurance that everyone is always blaming for the skyrocketing costs of health care.

Eighty percent of malpractice claims involve significant disability or death, a 2006 analysis of medical malpractice claims conducted by the Harvard School of Public Health shows, and the amount of compensation patients receive strongly depends on the merits of their claims. Most people injured by medical malpractice do not bring legal claims, earlier studies by the same researchers have found.

In other words, patient claims, and accordingly, the malpractice insurance to cover them, are not that large unless patients can prove significant injury or death due to medical negligence. This means that claims are not draining our pocketbooks; medical negligence is.

On the other hand, medical liability has improved patient safety — by leading hospitals to hire risk managers, for example, and spurring anesthesiologists to improve their safety standards and practices. Even medical societies’ efforts to attack the liability system have helped, by inspiring the research that has documented the surprising extent of preventable injuries in hospitals. That research helped start the patient safety movement.

Disturbingly, findings have shown that hospitals in New Jersey, Pennsylvania, and in fact all over the country are still vastly underreporting preventable errors, even serious ones, that occur on their watch, despite state laws requiring them to do so. On the consumer level, patients have no way of knowing how well local hospitals are performing. State agencies do not release reports from individual hospitals regarding their rate of medical errors. Oftentimes, it is not until the health department cites a hospital for breaking state laws that the public even hears of the hospital’s failing.

Take away medical liability and you take away the only meaningful check and balance a patient has on the impossible monstrosity of a system that American health care has become.

As Baker notes, “there’s a better answer for doctors worried about high malpractice insurance premiums.” And this answer is:

…[m]edical providers should be required to disclose injuries, provide quicker compensation to deserving patients and — here’s the answer for doctors worried about their premiums — shift the responsibility for buying malpractice insurance to hospitals and other large medical institutions. Evidence-based liability reform would give these institutions the incentive they need to cut back on the most wasteful aspect of American health care: preventable medical injuries.

It’s so crazy it just might work.

Originally posted at InjuryBoard by Mike Ferrara

Myth #2: Malpractice claims drive up health care costs.

Mike Ferrara — Tue, 10 Nov 2009 21:06:03 GMT

The campaign to slip widespread tort reforms into America’s health care bill is gaining momentum it doesn’t deserve because people are blithely accepting its exaggerations, distortions, and outright lies as fact.

To combat this, the American Association for Justice has just released a report called “Five Myths About Medical Negligence,” which exposes the tort reformers’ media campaign as the propaganda it really is.

Myth #2: Malpractice claims drive up health care costs.

Fact: Numerous studies have shown that malpractice claims have almost zero impact on the cost of health care in the U.S. As a good example, Americans for Insurance Reform released a study over the summer week showing that in recent years, doctor premiums and medical malpractice claims have overwhelmingly dropped, while the profits of the medical malpractice insurance industry have soared. Significantly, the study concludes that placing further limits on the liability of negligent doctors and unsafe hospitals would be unjustifiable, and would put almost no dent in our country’s health care costs.

The AIR study adds that because medical malpractice premiums amount to less than 0.5% of overall health care costs, with medical malpractice claims amounting to 0.2% (yes, these are tiny decimals) of health care costs, limiting liability any more will simply not have a significant effect on these health care costs. “If Congress completely eliminated every single medical malpractice lawsuit,” it says, “including all legitimate cases, as part of health care reform, overall health care costs would hardly change, but the costs of medical error and hospital-induced injury would remain and someone else would have to pay.”

The idea that malpractice lawsuits are unduly clogging the legal system while wasting American taxpayers’ time and money is simply bogus. On the other hand, medical negligence is very real, and any responsible health care reform bill must find a way to meaningfully address issues of patient safety.

Stay tuned as the week goes on for more myths about tort reform.

Originally posted at InjuryBoard by Mike Ferrara

Congressional Panel Will Investigate How VA Hospitals Gave Patients HIV

Mike Ferrara — Sun, 31 May 2009 21:01:12 GMT

A congressional panel is set to question officials from the Department of Veterans Affairs about medical mistakes at VA hospitals that caused at least five patients to become infected with HIV, and 43 others to contract hepatitis.

Last April, over 10,000 patients at VA hospitals began getting tested for HIV, after it came to light that doctors had used endoscopic (colonoscopy) equipment on them that hadn’t been sterilized properly, and had exposed them to the body fluids of other patients.

On June 16, the oversight and investigations subcommittee of the US House Committee on Veterans' Affairs will explore the causes of these mistakes and examine the VA’s solutions thus far.

The subcommittee chairman, U.S. Rep. Harry Mitchell D-Arizona, said Thursday in a phone interview that veterans who are testing positive for HIV and hepatitis, "whether it came from these improper procedures or not, the VA has a responsibility to take care of these patients."

A top VA doctor has said no one will ever know if the positive tests were caused by exposure to improperly operated or cleaned endoscopic equipment used in colonoscopies at Murfreesboro and Miami and to treat patients at the VA's ear, nose and throat clinic in Augusta. The VA has not denied the mistakes. -AP

Veterans who had VA colonoscopies but have since tested negative for infections are nevertheless hesitant to return to the hospitals. It’s hard to blame them, particularly when the hospitals have thus far failed to offer concrete explanations of how these kinds of mistakes were made.

Originally posted at InjuryBoard by Mike Ferrara

Ensuring Patient Safety Would Cost Fewer Lives AND Less Money

Mike Ferrara — Fri, 06 Nov 2009 22:12:56 GMT

Despite laws in New Jersey and Pennsylvania requiring hospitals to report major medical errors, unanticipated complications, and near misses to state agencies for the purpose of reducing medical mistakes, experts say that hospitals in both states are neglecting to report these kinds of incidents.

In 2007, major medical errors in Pennsylvania included accidentally leaving surgical equipment inside two separate patients at Fox Chase Cancer Center. At Abington Memorial Hospital in 2005, a woman recovering from hip surgery developed open bed sores after being left lying on a bedpan for several hours. In a total violation of state law, none of these incidents was reported by the hospitals responsible.

When serious medical errors don’t lead to a patient’s death, they require additional health care spending—often tens of thousands of dollars per patient—to correct.

"Anybody that is supposed to report close calls and has zero reports is clueless," said James Bagian, head of the Department of Veterans Affairs’ National Center for Patient Safety. "Management is asleep at the switch and just waiting until they kill someone." Josh Goldstein, Philadelphia Inquirer

Since 2003, though the health department has cited four hospitals in Southeastern Pennsylvania for failing to report serious medical errors, none of these hospitals has been fined.

In the current climate of sloppy enforcement, medical malpractice lawsuits are one of the only ways to protect patients against medical errors. They are also the only way to ensure that hospitals and doctors are held responsible if and when they do cause serious patient harm.

Rather than threaten patient safety and take away the patient’s right to compensation by limiting malpractice claims, health care reform needs to focus on ways to make patients safer. Insisting on better monitoring of hospital errors would be an excellent start.

Originally posted at InjuryBoard by Mike Ferrara

Myth #3: Doctors are fleeing.

Mike Ferrara — Thu, 12 Nov 2009 21:55:47 GMT

Myth #3: Doctors are fleeing.

Fact: No they’re not. Compelling data from the American Medical Association shows that the number of practicing physicians in the U.S. has been steadily increasing ever since the 1960s—faster, moreover, than the population. While tort reformers will try to spin this statistic by claiming that states with no malpractice caps are driving doctors to states with malpractice caps, the truth is that doctor numbers have increased in every state except four. Which four? Alaska, Georgia, Montana and Utah, all states with malpractice caps.

The idea that malpractice lawsuits are unduly clogging the legal system while wasting American taxpayers’ money and driving doctors out of business is simply bogus. On the other hand, medical negligence is very real, and any responsible health care reform bill must find a way to meaningfully address issues of patient safety.

Stay tuned as the week goes on for more myths about tort reform.

Originally posted at InjuryBoard by Mike Ferrara

Health Care Reform - Not Enough Attention to Medical Error Prevention

Mike Ferrara — Tue, 20 Oct 2009 22:38:27 GMT

According to a report just released by the NJ Department of Health and Senior Services, in 2007, hospital doctors, nurses and other medical workers committed nearly 9,400 "serious medical errors'' that threatened patient health by leading to infections, blood clots, and other unnecessary complications.

The report is the first in the state to compare hospitals with one another, showing exactly where the errors are occurring. Together, New Jersey’s hospitals fared worse than the national average on numbers of post-surgical infections and frequency of wounds re-opening. In other areas, such as surgical equipment being left inside patients after surgery or the wrong blood type being given, New Jersey fared better than other states.

AARP'S Kelmar said matching the national rate in mistakes is not good enough. She noted there were 63 incidents statewide of a foreign object left in the body after surgery -- a rate that is about the national norm.

"The expected rate of occurrence for this incident is zero,'' Kelmar said.

"Disconcerting numbers of preventable medical errors are occurring in our health facilities. Now consumers will know these results,'' said Patricia Kelmar, associate state director for advocacy for AARP-New Jersey, which pushed for the tougher reporting requirements. "Equally important, every hospital can see their own levels of mistakes compared to others, which we hope will encourage them to make the changes necessary to improve patient safety throughout the state." -The StarLedger

While state hospital “report cards” are a great step on the road to reducing medical errors, there is still not enough focus on preventable medical errors in the national health care legislation. All the talk of medical malpractice reform and tort reform has taken attention away from the real issue, which is that more than 100,000 patients die every year from preventable medical errors. Tort reform will do nothing to prevent this, and will only make it more difficult for patients who are needlessly harmed to get the compensation they deserve.

Originally posted at InjuryBoard by Mike Ferrara

Myth #5: Tort reform will lower insurance rates.

Mike Ferrara — Mon, 16 Nov 2009 20:13:15 GMT

Myth #5: Tort reform will lower insurance rates.

Fact: It is absolutely not the case that doctor liability premiums will go down if national malpractice reforms are passed. States that have already passed caps on damages have shown that while insurance companies don’t have to pay out as much in these states, they don’t pass on the savings to doctors by lowering premiums. In 2009, premiums in capped states were actually more than $1,000 higher per year, on average, than premiums in states with no caps.

Tort reforms simply don’t translate to insurance price reductions for anybody—doctor or patient. The idea that malpractice lawsuits are unduly clogging the legal system while wasting American taxpayers’ money and driving doctors out of business is absolutely baseless. On the other hand, medical negligence is very real, and any responsible health care reform bill must find a way to meaningfully address issues of patient safety.

Originally posted at InjuryBoard by Mike Ferrara

Myth #4: Malpractice Claims Drive up Doctors’ Premiums.

Mike Ferrara — Sat, 14 Nov 2009 18:31:27 GMT

Myth #4: Malpractice Claims Drive up Doctors’ Premiums.

Fact: Malpractice claims actually don’t have that much to do with the premiums doctors are paying. When Americans for Insurance Reform (AIR) conducted a study of the relationship between malpractice payouts and doctor premiums, it found that while doctor premiums have increased astronomically in the past few years, there has been no “explosion” in lawsuits, jury awards or legal fees to justify such an increase.

Rather, doctor premiums have been driven up by the economic situation of the insurance industry. When insurance company profits are suffering from declining interest rates and investments, they make up for it by charging more in premiums. This, and not malpractice lawsuits, is the reason doctor premiums have gone up so dramatically in recent years. (And by the way, according to a previous AAJ report, malpractice insurers earn more than 99% of Fortune 500 companies.)

Stay tuned as the week goes on for more myths about tort reform.

Originally posted at InjuryBoard by Mike Ferrara

Myth #1: There are too many “frivolous” malpractice lawsuits.

Mike Ferrara — Sun, 08 Nov 2009 18:32:23 GMT

Myth #1: There are too many “frivolous” malpractice lawsuits.

Fact: The Institute of Medicine has found that 98,000 people die and hundreds of thousands more are injured in hospitals each year due to preventable medical errors. These errors cost the health care system an $29 billion a year they wouldn’t have to spend if better prevention strategies were in place.

Despite these overwhelming numbers, only one in eight people injured by medical negligence ever files a malpractice suit. Moreover, the number of malpractice suits has actually decreased by eight percent over the past ten years, and amounts to less than one percent of the whole civil docket. Of the suits that do get filed, a 2006 Harvard study found that on average, 97 percent are meritorious, with a full 80 percent involving death or serious injury. “[P]ortraits of a malpractice system that is stricken with frivolous litigation,” the authors stated, “are overblown."

The idea that frivolous malpractice lawsuits are unduly clogging the legal system and wasting American taxpayers’ time and money is simply bogus. On the other hand, medical negligence is very real, and any responsible health care reform bill must find a way to meaningfully address issues of patient safety.

Stay tuned as the week goes on for more myths about tort reform.

Originally posted at InjuryBoard by Mike Ferrara