Why would it want to do that?  All I did was suggest that the Commission may have had ulterior motives when it dismissed, without so much as an investigation, an ethics complaint made by the Center for Justice and Democracy about the lack of balance on the Medicaid Redesign Team.

And yet, today I received this in my email box:

Dear Mr. Barovick,

In your blog posting on March 26 (“In New York State, Lots of Irony In Integrity”) you wrote:

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?

I am writing to inform you that the Commissioners do not serve at the pleasure of the Governor.  In order to insulate the Commission from such influence, they serve five-year terms and cannot be removed except for “substantial neglect of duty, gross misconduct in office, inability to discharge the powers or duties of office or violation of this section, after written notice and opportunity for a reply.” [Executive Law § 94(7)]

I believe that a correction is in order.

Walter C. Ayres

Director of Communications

Commission on Public Integrity

540 Broadway

Albany, New York  12207

And here is my response to Mr. Ayres:

Dear Mr. Ayres:

I disagree with you.  It is the Governor who can remove commission members, and therefore, they serve at his pleasure. The statutory reasons that allow for such discharge are, as I am sure you will agree, vague enough to justify removal whenever the Governor feels like getting rid of someone who is being particularly pesky to him or his agenda.

I also think that your organization made a decision based not on reason or ethics, but pure politics.  So to me, you do not have sufficient credibility or standing to complain about my post, which I will not change.

Thanks for writing.

Andy Barovick

So what’s really going on here? The Commission doth protest too much, methinks. Or, to put it another way, the Commission is reacting a bit dramatically because it doesn’t like being called out on its shortcomings of integrity.  Yet the spirit of deception continues in Mr. Ayres’ own missive. He emphasizes that the commissioners cannot be removed except under several circumstances, but leaves out who it is that does the removing, i.e., the Governor.  However, when you read the applicable statute, found in my initial post (click on link above), you cannot miss that fact.

Nobody in this debate will argue with a straight face that the Medicaid Redesign Team wasn’t stacked with hospitals and related organizations.  Nobody will contest that there was no representation of patient-safety groups or consumers’ rights organizations. Nobody could deny that it is the patients harmed by malpractice who would be most affected by any tort “reforms” proposed by the MRT.  So when the Center for Justice and Democracy filed its complaint, which was grounded in the stark imbalance and unfairness of the makeup of the MRT, that organization deserved, at the very least, to be heard.  Instead, the Commission on Public Integrity muzzled them, and quickly.  To give them a fair hearing would have involved conducting an investigation, and actually examining the serious, fact-based claims that the Center put forward.  But the pillars of Integrity at the eponymous Commission must have had other things on their minds, such as political expediency.  Because nothing else will explain the failure to accord the Center’s complaint even a momentary look.

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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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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.

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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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Today, I continue to focus on the fallacy of the tort “reform” movement.  Because as Eric Turkewitz reaffirms in today’s New York Personal Injury Law Blog, and as I have argued, tort “reform” does not save lives–reforming careless medical practices will. And so, the “reformers” prattle on about legislation to cap awards and prevent access to the courthouse, while utterly failing to ever address reforms that would increase patient safety.

But let’s forget about reforms of legislation, and reforms of patient safety programs for a moment, and acknowledge that there is another area of needed reform that the insurance companies, medical societies and doctors don’t like to talk about.  It’s doctor discipline.  Medical societies fail at it, as do hospitals.  Insurance companies could deny coverage to doctors with a well-established history of injuring or killing patients, yet they rarely do. Why would they, when doing so would deprive them of a steady income stream (premiums), and deprive the hospital at which the doctor works of an additional stream of paying patients?

Today’s Washington Post contains this article, “Report: State Boards Don’t Punish All Doctors Sanctioned By Hospitals.” And this isn’t the first article of its kind to be published.  Why would reform in the area of doctor discipline be a good idea?  Because it is the doctors who are being “disciplined” in the careless and ineffective manner that is the standard of practice today who are making most, if not all, of the errors that injure and kill patients.  Cosumers’ rights groups have always maintained, based on a wealth of studies, that most doctors are competent and better, and that is a relative few incompetent doctors who make the majority of errors.  So why is there no pending legislation mandating that wayward doctors actually receive the discipline or retraining deemed appropriate for them by state boards?

And why is there only one voice in the NYS legislature, that of Assemblyman Rory Lancman, advocating for legislation based on a proven method of reducing costs and injuries, i.e., the groundbreaking patient safety initiative at NY Weill Cornell Medical Center, which resulted in a 99% reduction in costs and injuries?  Shouldn’t this system by instituted at all NYS hospitals?

And how is it that major medical centers who claim to bear the brunt of so-called “runaway” medical malpractice verdicts have CEOs making salaries in the millions of dollars that are funded by us, according to today’s NY Times?  Someone, or some movement, is not being honest here.  And I can assure you that it is not the victims of medical malpractice.

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From WNYC News, we have the latest on the fight over medical malpractice caps in Albany. Assemblyman Richard Gottfried is allied with patient safety, but does not sound confident about the result of the coming budget negotiations.

From Missouri, we get another reminder of the failure by tort “reformers” to focus on the source of medical malpractice litigation–negligent, or in this case, drunk physicians. How about a little dose of criminal liability to shape things up in the OR? Now there is some state legislation that makes sense and protects patients.  Leave it to The Show Me State to show NYS legislators how it ought to be done.  And here is a question for Albany’s legislators. How will caps on medical malpractice damages and a no-fault state fund for neurologically-damaged infants (NIIF) stop NYS’s own drunk doctors from severely injuring their unlucky patients?  Just curious.

And it never hurts to be reminded that tort “reform” is a one-sided, anti-consumerist movement, funded by the likes of Big Tobacco, and siezed upon by insurance companies and hospitals that don’t like being held accountable for injuries and/or deaths to patients. So thank you, PA attorney David Fallk, and the Times Tribune, for pointing out that 98,000 patients per year are being killed by negligent medical treatment.

Who are the good folks behind tort “reform”? Not surprisingly, politicians facing indictment, such as NY’s own Sen. Kruger, who shilled for tort “reform” and his good friend, a negligent MD with a history of poor medical care.

And that will have to do it for this morning’s wrap up.

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