February
18, 2005
Bush, Congress Must Combat Both Medical Lawsuits
and Errors
By
Mort Kondracke
Once
again this year, it looks as though Congress will fail to
pass medical malpractice reform - or do very much about
its twin problem, the medical errors that kill or hurt thousands
of people every year. As has happened in the past, the House
is likely to approve caps on non-economic damages ("pain
and suffering") in malpractice litigation, but the
legislation will be stymied in the Senate.
That
body did just pass a major item on the GOP/business tort
reform agenda - limits on class-action lawsuits - but knowledgeable
lobbyists say that the trial lawyer lobby retains enough
power among both Democrats and Republicans to kill medical
malpractice reform, despite President Bush's urgent campaigning.
Bush
speaks frequently about the need to control "frivolous
lawsuits" and surging malpractice insurance premiums
that are blamed for driving emergency room doctors, obstetricians
and neurosurgeons out of business.
Malpractice
reform - principally, a $250,000 cap on non-economic damages
- is a key item on Bush's agenda for containing double-digit
increases in health care costs.
An
administration study showed that about $28 billion is spent
each year on the combination of malpractice litigation and
the "defensive medicine" that doctors and hospitals
perform, including extra tests and unnecessary procedures,
to protect themselves against lawsuits.
Opponents
point out that while this is a huge sum, it still represents
only a sliver of the nation's $2 trillion annual health
bill.
But
a new study by the Joint Commission on the Accreditation
of Healthcare Organizations suggests there are other downsides
to the current malpractice system. Among other things, the
commission says, "the stifling specter of litigation
results in the under-reporting of adverse events by physicians
and avoidance of open communications with patients about
error."
In
a landmark 1999 study, the National Academy of Science's
Institute of Medicine reported that 44,000 to 98,000 Americans
die every year because of preventable medical errors.
That
report has led to heightened consciousness about quality
control in health care, outcomes-based medicine and the
need for medical records to be computerized.
However,
as one of the authors of the IOM study, Lucian Leape of
Harvard University, told correspondent Susan Dentzer on
PBS' "NewsHour with Jim Lehrer" last week, the
report "called for a national commitment, a moonshot,
a serious effort to reduce medical errors."
"We
said we could reduce medical errors by 50 percent in five
years if we had that kind of national commitment."
But it has yet to happen. Leape said, "There's been
a bill before Congress every year for the past four years
to provide protection, and we just don't seem to be able
to get it passed."
Mainly,
what Congress and the administration have done is to authorize
pilot studies and demonstration projects on quality control
and information technology.
A year
ago, then-Secretary of Health and Human Services Tommy Thompson
asked for $50 million to advance electronic record-keeping,
but the money was excluded from Bush's budget.
That
money now has been added to the 2005 supplemental budget
for Iraq and Afghanistan, and Bush's 2006 budget calls for
$125 million in health information technology demonstration
projects - but this is still well short of a "moonshot."
In
addition, the administration has called for no increase
for the Agency for Healthcare Research and Quality, which
gathers and disseminates best-practices information for
doctors and patients.
Dentzer's
segment on PBS addressed extensive efforts at Veterans'
Affairs hospitals to avoid errors, including "wrong
site" surgeries. The VA official in charge of quality
told her that 44 percent of incorrect surgeries involved
operations on the wrong side of the body. And 36 percent
were on the wrong patient.
This
is not only a problem for the VA. One California expert
told Dentzer, "Everybody - every doctor, every nurse,
every hospital - knows we have a terrible problem and they
are really desperate. Just think, if a jumbo jet were crashing
every day what we would be doing about the problem."
If
medical errors kill 98,000 Americans a year, that's about
270 people a day - roughly the number aboard a Boeing 747.
Medical
errors are the reason that patients or their families sue
doctors and hospitals, but the JCAHO report noted that several
studies have shown that litigation is an ineffective means
of dealing with the problem. One Harvard study found that
only 2 percent of negligent injuries resulted in successful
claims against providers and only 17 percent of claims appeared
to involve negligent injury.
"Few
injured patients receive compensation through the medical
liability system, and those who do receive variable recompense,
even for injuries that appear to be quite similar,"
the JCAHO report found.
Experience
from the states indicates that the kind of caps Bush proposes
on jury awards do result in fewer lawsuits being filed and
reduced medical insurance premiums. But the study found
that "an unintended consequence of the tort system
is that it inspires suppression of the very information
necessary to build safer systems of health care delivery."
"When
it comes to acknowledging and reporting medical error, there
is too often silence between practitioners and patients,
practitioners and their peers, practitioners and the organizations
in which they practice and health care organizations and
oversight agencies."
The
group suggested passage of legislation to guard providers
who report and apologize for medical errors from having
their statements used against them, plus measures to encourage
mediation and early settlement offers to keep cases out
of court.
Democrats,
even though they are closely tied politically to the trial
lawyer lobby, have suggested some compromises on the medical
malpractice front that medical groups and Republicans should
consider. Both sides should consider a higher cap than $250,000
on non-economic damages if that will produce an agreement.
Last year, it was not enough.
But
even beyond seeking bipartisanship on controlling lawsuits,
it's long past time for a major effort to stop medical errors.
There are better, easier and cheaper ways than litigation
to prevent removal of the wrong limb or breast. Congress
ought to foster them.
Mort
Kondracke is the Executive Editor of Roll Call.
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