The State of Texas loves to crow about it’s allegedly successful tort “reform” program.  Of course, whether or not it has been successful depends on which article you read, and whether you’re an insurance executive or a wronged patient.  And Texas does not like to acknowledge that one clear result of its efforts is that it has become one of the most expensive states in which to receive healthcare.

But here is something else that Texas would probably not want medical consumers to know.  If you are a neurosurgeon from, say, Minnesota, who has inflicted enough harm on your patients that your ability to practice has been severey curtailed, all you need do to kick start that  income stream is–you guessed it–move to Texas.  Just pay your licensing fee, and start practicing, just as Dr. Stefan Konasiewicz did.

According to the Duluth News Tribune, Minnesota is as much to blame as Texas in this unfortunate scenario, as sanctions accrued in that state need not dog a doctor when he moves to another.

So, yes, this is yet another example of the abject failure of the tort “reform” movement to address a real cause of medical malpractice: unskilled physicians who are rarely, if ever, disciplined in a manner that prevents harm to the medical consumer. Tort “reform” is not going to solve this problem.

But it would be nice if hospitals and medical societies stopped looking the other way when doctors under their supervision injure and/or kill patients.  It would be nice if “doctor discipline” was more than just a sometime-uttered phrase.  And actually imposing recommended discipline would lend the medical societies in every state more credibility when they talk about what’s good for healthcare.

Will this happen? Probably not. But a medical consumer can dream, can’t he?

ShareThis

Compensation to families of infants injured at birth due to medical malpractice is about to undergo a big change, but whether or not it’s for the better is anybody’s guess.  The class of plaintiffs that will be affected is composed of those infants who suffered neurological impairment to the brain or spine during the birth process, and the area of compensation involved is future medical expenses.

At present, if the injured infant’s family prevails at a medical malpractice trial, it is awarded, as part of the damages calculus, a sum of money to cover future medical expenses.  That sum is usually the result of calculations performed by an expert economist retained by the plaintiff’s family.  As of October 1, 2011, that will change.  Money for future medical expenses will no longer be given to the affected families at the time of the verdict or settlement.  Instead, such families will have to register for a medical indemnity fund managed by New York State, from which they will supposedly receive enough money to properly care for their injured children.  Luckily for us, the workings of this plan have been nicely summarized by attorney Glenn Verchick in the most recent Brooklyn Barrister.

As Mr. Verchick points out, the purpose of the plan is to lower malpractice premiums for hospitals.  And the same hospitals will no longer be saddled with paying for the future medical care that the negligence of their physicians made necessary, since the fund will assume that responsibility.  So, to the extent that such payments contributed to improvements in patient safety, that opportunity has been lost.  And it strikes me as strange that with the wealth of opportunities to legislate improvements in OB/GYN-related patient safety, the bill proposed by Assemblyman Rory Lancman, that would force all NYS hospitals to institute programs mirroring the hugely successful patient-safety program at NY Weill Cornell Medical Center, is not being acted on.

Another development being closely watched by medical malpractice lawyers on both sides of the aisle is legislation that may overturn the Arons v. Jutkowitz case, in which the NY Court of Appeals granted defense lawyers the right to conduct informal, ex parte interviews of plaintiffs’ treating physicians, as long as the lawyers obtained the proper HIPAA-compliant authorization ahead of time, and waited until the close of discovery to contact the physicians. Many plaintiff’s lawyers were and remain disturbed by the Arons case, for reasons best left to more articulate bloggers like Eric Turkewitz. Suffice it to say that the decision showed a certain naivete on the part of the Court with regard to human behavior, and that it ignored the harm that could accrue toward a plaintiff’s case by allowing such an unregulated exercise to take place.  But now there is a bill, also proposed by Assemblyman Rory Lancman, that would effectively reverse the Arons decision. It’s nice to see someone looking out for the interests of those injured as a result of medical malpractice now and then.  Let’s hope this bill gains some traction.  However, in the political atmosphere that produced a one-sided, State-sponsored Medicaid Redesign Team, utterly lacking in representation by patient-safety interests, I’m not feeling very optimistic.

ShareThis

According to Capitol Confidential, a budget agreement has been reached in Albany, and it does not include caps on medical malpractice awards.  As many of you know, the Medicaid Redesign Team had proposed a $250,000 cap on non-economic damages, which would have unfairly impacted children, the elderly, the unemployed and under-employed.

No word yet on whether the Neurologically Impaired Infant Fund remains part of the budget. I hope not, since, among other things, nobody from the MRT has even been able to fully articulate where the money for such a fund would come from.  Moreover, if compensation to a neurologically impaired infant is made through an administrative board instead of the courts, there will be little motivation for hospitals and individual physicians to focus on patient safety improvements.  And, ironically, this “cost-saving” measure would simply shift the financial burden for a lifetime of care from those who caused the injuries, i.e. negligent doctors, to state taxpayers, who will ultimately be taxed when these infants are forced to turn to Medicaid.

But good news is good news.  Medical consumers have won something today.

ShareThis

Integrity is a funny concept.  Some define themselves by it, and live by its precepts.  Others use it as a shield, behind which they act in ways that are anything but integrious. (Thanks to Antonin Pribetic, author of The Trial Warrior Blog, for pointing out this site, which provides an expanded definition of the term.)

With that in mind, let’s have a look at Capitol Confidential’s most recent post on Albany’s tort “reform” push.  You may recall that the Governor’s Medicaid Redesign Team wants to impose caps on non-economic  medical malpractice damages, and to take claims of infants neurologically-impaired by medical malpractice out of the court system, and into a state no-fault fund.

You may also recall that the same Team is comprised of leaders of hospital systems, a couple of politicians, and the Greater New York Hospital Association.  In other words, it is, essentially, stacked with the very corporations that would benefit most if the tort “reforms” are made into law.  This spurred an ethics complaint by a pro-consumer group, the Center for Justice and Democracy, about the composition of the MNR.  Why, the Center wondered, were there no representatives from consumers’ rights groups or patient-safety groups, so that the voice of the people directly affected by medical mistakes could be heard?

According to Capitol Confidential, the ethics complaint made by the Center for Justice and Democracy to the New York State Commission On Public Integrity has been rejected.  In fact, they have refused to even investigate the Center’s claims, according to the letter explaining its actions, found within the Capital Confidential post.  It found no conflict because the MNR is just an “advisory” panel, so that there was no imbalance of power.  Really?

Well, here’s something that consumers in New York State might be interested in. The good folks on the NYS Commission On Public Integrity serve at the pleasure of the Governor. And so, speaking of the subject of integrity, its members have a personal stake in pleasing the same entity.  Could it be that the NYS Commission On Public Integrity was unduly influenced by that interest when it outright rejected the conflict of interest claim?  And wouldn’t that be the ultimate irony?

But more important, don’t New York consumers deserve better?

ShareThis

In the City of Brotherly Love, a/k/a Philadelphia, a physician with a rich history of medical malpractice was allowed to keep practicing, while state disciplinary authorities failed to take action.  And 8 murder charges later, a grand jury has found that this laissez-faire approach to Dr. discipline was actually a “complete regulatory collapse.” (ABA Journal).

If you follow the link in the ABA Journal’s article, you can learn the grisly details, courtesy of the Philadelphia Inquirer, of the doctor’s killing of one adult patient, and his finishing off of 7 live babies that he delivered and then killed.

And if you’re wondering how this could have happened, I have one answer for you: doctor self-reporting.  That is how much of the regulation of physicians is done here in the US, so that, not surprisingly, reports of errors are on the scant side.  And also not surprisingly, this not only allows, but fosters a climate in which physician-caused injuries and death can proliferate.  When some of these victims realize what has been done to them, they bring medical malpractice cases.  But of course, that’s only after they see through the initial explanation that there was “an unavoidable complication.”

If you’ve been following the news, or even just following this blog, you know that these events are not rare.  They are all too common.  Forgetting about the human toll in the Philadelphia case for a moment, think about the expenses that are being racked up by this staggering failure of oversight and responsbility to patients: possibly 8 medical malpractice/wrongful death cases; and possibly an equal number of criminal cases.  This one OB/GYN could send an entire state’s budget spinning.

Why haven’t we heard from the Greater New York Hospital Association or Healthworkers 1199 about atrocities like this, that happen in our state, too?  Why don’t the people who claim to want to slash the “costs” of medical malpractice litigation even acknowledge this little problem?  Shouldn’t tort “reform” aim to reform the mechanisms by which medical errors are caused?  Just asking.

ShareThis

When you look beyond the tired and twisted rhetoric employed by advocates for tort “reform,” you will notice an unsettling trend.  They never address the source of what they label “the medical malpractice crisis”–negligent medical care that injures and kills patients.  And so they walk around as if they somehow missed the news that a world-renowned medical center here in NYC reduced payouts for medical malpractice claims by 99% through the institution of a rigorous patient-safety protocol in its OB/GYN department.  And how about this “minor” detail: sentinel events like avoidable deaths and severe injuries dropped from 5 in 2000 to 0 over the course of 2008-2009.  It sounds important, because it is. But whatever was achieved, and proven, through the NY Hospital Weill Cornell Medical Center’s study, you didn’t hear about if from the tort “reformers.”

So it is no surprise that the same tort “reformers” turn a blind eye to a related, but equally important source of medical error: the failure to properly discipline error-prone physicians.  This is a nationwide catastrophe, as I discussed in a recent post.  And it is not exactly a long jump, logically speaking, to conclude that the failure by hospitals and medical societies to follow up with their own disciplinary findings allows error-prone doctors to continue to hurt and kill patients.

What you do hear about from the tort “reformers” is “lawsuit abuse.”  They love terms like: “frivolous lawsuits,” and seek to portray victims of negligence and their “trial lawyers” as lawsuit-happy opportunists who file flimsy cases at the first sniff of the chance to obtain all that easy money, that “jackpot justice” that somehow automatically comes into their bank accounts, despite the traditional hurdles of scrutiny by insurance company lawyers, judges and juries.  Not surprisingly, many doctors, and particularly those in need of discipline, are big fans of tort “reform.” The movement has a very attractive element for them: no accountability to patients for their errors.  So it was somehow not surprising to see this choice item.  It’s about a Delaware surgeon who chafed under the discipline rightfully imposed on him. But he didn’t stop there.  He sued his hospital over its unfairness, as he saw nothing wrong with screaming at OR staff while waiving surgical drills at them, or inviting reporters into his OR under false pretenses in a failed effort at self-promotion.  And I’m going to go out on a limb here, and guess that the patient was not informed that he would be center stage in a show created by his surgeon.

When will the tort “reformers” talk about this frivolous lawsuit?  It certainly added to our nation’s healthcare costs, as the hosptial involved had to defend itself in court. In fact, as the article shows, there was a dispute about legal fees.  Hello out there? Tort “reformers”?  Your silence is deafening.

ShareThis