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?

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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?

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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.

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The Big Boys of the print media are catching on to the injustice that may result if proposed anti-consumer legislation is passed in Albany.  First, the usually conservative Forbes Magazine gives a begrudging nod to a powerful, yet sober post from Eric Turkewitz, author of the New York Personal Injury Law Blog. The Forbes post is entitled “New York Mulls Caps on Medical Malpractice Verdicts.”  If you click on the Forbes link, you’ll get to a link to Eric’s blog, which is well worth the read. Or just go here.

Less surprising, but equally welcome, are two editorials in today’s New York Times. One is entitled “A Bad Deal on Malpractice.”  It’s point is pretty simple.  The proposed caps “will unfairly punish patients badly injured by medical negligence.” Instead, the best way to address the problematic malpractice system “is to greatly reduce the errors and bad outcomes that can lead to malpractice suits.”

The other editorial is entitled “Medicaid and the N.Y. Budget: Sensible Cuts, and Little Political Flak.” In it, the Times writes: “We urge lawmakers to force out a misguided cap on malpractice awards–a provision engineered by hospital leaders that would deprive many injured patients of fair compensation.”

The idea that improving on patient safety will reduce costs of litigating medical malpractice cases isn’t new, and I mentioned it again in a recent post. Perhaps what is new is that the facts underlying patient-safety success stories are getting new attention, possibly because of the stellar reputations enjoyed by institutions such as NY’s own NY Weill Cornell Medical Center, where OB/GYN errors and the costs associated with responding to them in court decreased astronomically in response to its own program (see highlighted post).

Let’s keep the facts, and the victims, in mind, as we continue to follow news surrounding this unfortunate legislative effort.

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In the debate on how to control the rising cost of healthcare, and legal costs associated with it, facts have never stood in the way of many supporters of tort “reform.”  But it is particularly galling when that approach is used against the most defenseless of all of us: infants-and particularly those entering the world with neurological setbacks caused by poor medical care.

One of the few medical centers that have made an honest effort to address improving OB/GYN care is NYC’s own New York Presbyterian Hospital-Weill Cornell Medical Center.  Here is the result of their study.  What did they achieve?  Two results are stark and undeniable.  The program brought about an unprecedented reduction in serious injury and/or deaths to mothers and infants during labor and delivery.  And the same focus on patient safety brought about a 99% reduction in yearly compensation paid out due to claims of malpractice.

So you might think that it would be a good thing if our legislature made such programs mandatory for New York State hospitals, given the proven record of reducing litigation costs and improving outcomes for mothers and infants.  But that is not what is happening at all.  Instead, hospital lobbyists have proposed a plan that is helpful for their corporations at the expense of neurologically-impaired infants, as well as tax payers across our state.  That’s right. You and me.

They propose establishing a Neurologically Impaired Infant Fund (NIIF) to take care of infants injured by medical malpractice.  One key element of this arrangement is that wrongdoers would not be held accountable in a court of law.  Another problem is where the funding for this fund would come from.  There have been vague references to increased taxes of hospitals, but nothing is concrete, in a situation too important for anything less.  This proposed fund, like those being discussed in other states, lacks a dedicated funding source, which will inevitably leave the fund vulnerable to insolvency, jeopardizing the ability of families affected by birth injuries to receive anything close to fair compensation.  And if and when this vague fund is established, and families and their injured infants are shortchanged by such historically inadequate administrative compensation, these families will haven no choice but to turn to Medicaid for care.  Guess what that does?  That’s right.  It shifts the burden of caring for these infants to the taxpayers.   That would be you and me.

But the more insidious result of this proposal would be that the source of medical malpractice–negligent MDs and hospitals–would be insulated from their errors and their costs–physical, emotional, and financial.  Why? Because there would no longer be any real incentive to focus on patient safety–the one thing that has been shown to be effective in reducing injuries and costs.  Experts in the field have found time and again that the civil justice system fosters patient safety by holding negligent doctors/hospitals accountable for their mistakes.  The current NIIF proposal removes almost all incentives to stop such mistakes, since wrongdoers would no longer be subject to scrutiny in depositions, and jurors and judges will be deprived of the opportunity to assess their credibility.  Moreover, such programs result in lessening, or stopping outright, institutional reviews of the training of the doctors responsible.  Why would hospitals take on such onerous tasks, when doing so will not affect their bottom lines?

Things might be different if more institutions started patient safety initiatives on their own.  Or if medical associations, hospitals and medical liability insurance companies made real efforts to discipline wayward physicians. But they don’t.  That is another unfortunate fact that is being ignored in this debate.

In the end, it all comes down to this.  How do we want to care for the most vulnerable members of our state’s population?  How honestly we rise to the challenge will be an important reflection on all of us.

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Nobody likes to think about the possibility that he or she will become the victim of medical malpractice. But right now, there is more reason than ever to consider that unpleasant scenario.  Because if legislation now under consideration in Albany goes into effect, people who have been harmed by medical negligence will be facing a second round of victimization.

That is because the Medicaid Redesign Team, or MRT, has decided that New Yorkers who have been victimized by substandard medical care  should have their non-economic damages capped at $250,000, if they are successful in bringing a medical malpractice lawsuit.  Non-economic damages are meant to compensate for the irreparable  injuries caused by malpractice that affect one’s quality of life.  Typically referred to as damages for pain and suffering, they encompass paralysis, blindness, loss of body part or function and disfigurement, and are meant to compensate you for such a loss for the remainder of the time you live with it.

So, let’s say you’re a young mother who loses function in her arm after a botched shoulder surgery–something that never should have happened, but for the negligence of your surgeon.  If you were successful at trial, you would be prevented from receiving any compensation over $250,000.  That’s how your inability to use your arm for the rest of your life would be valued.  If that injury affected your ability to earn a salary, you could be reimbursed for what is known as “lost earnings.” But if you were not working, or were not earning much, lost earnings damages are a cold comfort.  It is therefore easy to see that such a cap unfairly affects society’s most vulnerable–children, the elderly, the poor, minorities and women–who often earn less money and whose injuries are more likely to be based solely in non-economic damages.  And that is how New Yorkers who are victims of medical errors will be victimized twice, if this legislation becomes reality.

And if you’ve been wondering what any of this has to do with Medicaid–remember the Medicaid Redesign Team–the answer is: nothing.  Unless, of course, you consider the likelihood that under- compensated victims of malpractice will eventually have to turn to Medicaid, thereby increasing the tax burden on all of us, for their healthcare.

Is this really what we want?

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