And the Debate on the Proposed Medical Malpractice “Reform” Continues
OK, friends. This has been a hot issue on my solo practitioner list serve, which found my recent response too long to digest. So I’ve put it here, along with the post from Patrick to which I was responding.
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From: Andrew Barovick <standardshift@gmail.com>
To: Patrick Begos <begos@optonline.net>
Date: Wed, 9 Mar 2011 11:46:52 -0500
Subject: Re: [SOLOSEZ] Gov. Cuomo’s Medicaid Redesign Team Accused of Ethical Violations
Hey Patrick,
Thanks for your response. I disagree with you about eliminating mistakes.
Yes, there will never by care that is 100% free from mistakes. But the
frustrating thing for me is that when hospitals focus on improving patient
safety, huge strides have been made. If you look at the link in one of my
emails in this chain to the NY Presbyterian infant-related study, you’ll see
what I mean. But unfortunately, very few hospitals and MDs take the same
approach, even though the upshot of what NY Presbyterian did is that in
addition to cutting medical errors astronomically, it reduced costs just as
much–because there were fewer claims made.
I also disagree with you about why extra tests are done. Yes, some MDs and
hospitals do it to cover themselves. But many do it to pump up profits.
You would be surprised to see how many MDs own the CT/PET/x-ray facilities
to which they refer their patients. And that’s the tip of the iceberg. And
from a patient-safety standpoint, no patient ever got sicker, or died,
because he was sent for an extra test or two.
I think you have misunderstood my point of view. I believe that the best way
to reduce mistakes is to focus on patient safety. That has been proven
effective in reducing error, and in reducing cost. But since that continues
to be swept aside by most of the medical community, perhaps because of the
initial expense in implementation, MDs and hospitals must be held
accountable in a court of law, and the damages available must be substantial
enough to induce better practices on the part of the tortfeasors, and enough
to provide fair compensation to their victims.
Medical malpractice cases are expensive to litigate. You are correct that
many cases are not brought because the low damages at the end of the case,
assuming it is even won, make it financially unwise. This is particularly
heartbreaking with the elderly. A retired 85-year-old man could die in the
hospital because his attending MD was playing video games on his iPhone when
the patient’s trach tube dislodged, resulting in painful suffocation. But
most of my colleagues could not take that case on, because there is no “lost
wages” element of damages to be sought. I think that is a horror, and needs
to be changed, perhaps by adding a new type of damages that look to the
suffering the family or friends had to endure as a result of the senseless
and medically unnecessary death. But in this environment, that is very
unlikely.
As for cases with less culpability, but greater damages, only an
inexperienced or foolhardy practitioner would take such a case today. As
you know, medical malpractice cases are prohibitively expensive to invest in
now. If you don’t have complete confidence in the merits of your case, in
all areas–liability, causation and damages–you don’t bring it. That’s why
the tort reformers’ rhetoric about “frivolous lawsuits” and “jackpot
justice” is so unfounded. No frivolous case will withstand scrutiny by the
insurance company lawyers defending it, and no insurance company will throw
money at a weak case just to make it go away. And that is why caps on
damages of $250,000 is so misguided. If the claimant brought the case to
trial, and convinced a jury or judge of the negligent MD’s malpractice, than
by definition the case was meritorious. And yet, those deserving victims
will fall victim to the legislature’s one-size-fits-all award process, which
will usually be insufficient, instead of benefitting from his or her
constitutional right to have a jury decide.
And though I used the term “evil” half-jokingly with regard to tort reform,
I promise you that if you google the term, and read about the movement’s
origins, backers, and goals, you will be repulsed.
Andy Barovick
On Wed, Mar 9, 2011 at 11:09 AM, Patrick Begos <begos@optonline.net> wrote:
> it’s tough to avoid the conclusion that
>> proponents of tort reform are evil, and obsessed with limiting access to
>> the
>> courthouse.
>>
>
> Wow. Evil.
>
> I don’t have a particular dog in this race, as I do not do PI or med mal
> work on either side. I think that anyone who is honest about the facts and
> reality can agree on at least 2 things:
>
> 1. Doctors and hospitals make mistakes, sometimes really bad ones,
> sometimes preventable ones.
> 2. Doctors and hospitals order lots of tests that have little or no medical
> purpose, but are done largely to avoid malpractice claims.
>
> Eliminating mistakes is never going to happen. Neither is eliminating
> unnecessary tests. And both of these things — “mistakes” and “unnecessary”
> — are often subjective, with reasonable minds differing.
>
> The problem with your point of view is that it appears to assume that the
> best way to reduce mistakes is to allow for substantial tort liability for
> non-monetary loss — ie, pain and suffering, loss of consortium, etc. That’s
> certainly one view, but it seems a pretty blunt tool for improving the
> practice of medicine. Plus, I don’t think medical malpractice litigation
> polices or reforms anything. Med-mal cases are very expensive and difficult
> to litigate. So the vast majority of cases where there’s honest-to-god
> negligence don’t get brought because there are no “good” damages. How is
> that helping make medical practice better? And, by the same token, a case
> with less culpability, but greater damages, is more likely to be brought
> because of the economics of it. Further, by approaching medical negligence
> on a case-by-case basis, no one can see patterns, trends, etc. or deal with
> them.
>
> If I were designing a system from the ground up, I would take a page from
> ERISA. Congress decided to impose regulations to protect pensions (which had
> historically seen lots of defaults) and welfare benefits (life, health,
> disability insurance), and to encourage employers to offer benefits by,
> among other things, making them cheaper and more uniform. As a result of
> ERISA, millions of people have access to benefits that they wouldn’t
> otherwise have. As a result of ERISA, resolving disputes over benefits is
> far cheaper than full-blown litigation. To be sure, there are some
> employees/claimants who do not get benefits because of ERISA’s rules who
> might convince a jury that they were entitled to benefits. (It doesn’t mean
> they were any more entitled; it means that reasonable minds might have
> differed over whether they were entitled). But for each person in that
> situation, there’s 1, 10, 100 who got benefits that they wouldn’t otherwise
> have gotten. Net result: positive. Individual result: could be negative.
>
> Quality of healthcare could benefit from the same treatment. Would anyone
> in this country object to healthcare that was both better and cheaper? But
> to do so, you have to cut into the notion that any individual who suffers a
> bad result is entitled to recover as much money as her lawyer can get and a
> jury will award. It is a classic case of advancing the collective good v.
> the individual good.
>
> One problem is that the tort reform debate is kind of like that infamous
> question that was asked of Dukakis, about whether he’d want to impose the
> death penalty on someone who killed his wife (or something like that).
> Dukakis f**ked up the answer, of course. The answer for most of the human
> race is that if you hurt my family, I will want to visit as much hurt on you
> as I possibly can. I’ll pull the switch if they’ll let me. But that personal
> reaction should never be the foundation for policy. Policy has to look at
> what’s the best result for the largest number of people. Policy should be
> decided by people who don’t have a horse in the race (as if that would ever
> happen). When a policy decision gets made, there are always going to be
> individuals who do worse than they would have without the new rules. Always.
> But the idea is that the benefits outweigh the losses.
>
> That notion is, IMO, missing from the tort reform debate.
>
> To be sure, there are people on the other side who’s vision of tort reform
> is “just keep jury awards low and don’t change anything else.” I don’t like
> their position either.
>
> Patrick W. Begos
> Begos Horgan & Brown LLP
> Westport, CT and Bronxville, NY
> 203.226.9990
> pwb@begoshorgan.com
> http://www.begoshorgan.com
>
How Proposed Legislation Re: Medical Malpractice Will Hurt NYers
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?
Heads in the Sand, Hands Protecting Wallet
I was so enraged this morning that I could not write. That is because I came across this article in today’s New York Times. It’s about an American hospital that overradiated stroke patients undergoing CT brain perfusion scans, despite a virtual tsunami of warnings. According to reporter Walt Bogdanich:
The patients at Cabell Huntington Hospital in Huntington, W.Va., were overdosed…until late November..even after the Food and Drug Administration had publicly issued its final report on hundreds of overdoses involving brain scans at other hospitals and the errors had been discussed publicly in Congress and by state officials and professional organizations.
What’s more, although Cabell knew about the errors for three months, it stonewalled, never publicly admitting to them, until the NYT began probing. And now the professional medical community, the patient community, and the community consisting of all people with brain function, are left to wonder: how could this have happened, given the bright red flags waving before Cabell’s collective eyes? As the lawyer for one victim put it, ” it was unfathomable that [the hospital] could make these mistakes ‘after the entire radiology world and the universe was aware of the problems.’”
So, this is not mere negligence. This is more than mere error. This is a willful ignoring of well-established dangers to patients under the hospital’s care. And what is not addressed in this article is the long-term effects of receiving over 10 times the recommeded dose of radiation–the dose that one patient, a 36-year-old mother of two, received. The immediate effects included nausea, fatigue, feelings of burning in her head and face, and hair loss in clumps. Might other, more insidious results lie ahead for her? Cancer is the obvious threat, but unfortunately, the possibilities are unknown.
How do we stop this type of disaster from continuing to occur? Dr. Rebecca Smith Bindman, a radiology professor who has testified before Congress, suggests that the “only way to fix the situation is to have hospitals be accountable by having to record the dose and reveal that to patients.” The Dr. is right, but also wrong. Hospitals must be held accountable, but telling a layperson, i.e, the patient, what dose he or she received will do nothing to correct the problem. Patients are unlikely to realize that they have been overradiated, and even if they do, they will likely focus their initial efforts on trying to understand what just happened to their health.
Hospitals must be held accountable in the manner that hospitals and tort “reformers” despise: through the pocketbook. Money talks to hospitals, and they don’t like it when the talk consists of the money saying “Bye-bye.” Of course, none of this would be necessary if the hospitals and medical societies actually made good on their promises to regulate their institutions and MDs, and provide an environment of patient safety that we can rely on. But they don’t, as this disgraceful story illustrates.
The tort “reformers” want legislation, on both a New York State and Federal level, that would gut the rights of injured patients to be made whole after medical errors and other negligence injure or kill them. In other words, the tort “reformers” want to relieve hospitals and doctors of accountability for their errors, because that philosophy is good for commerce, and keeps hospitals and insurance companies financially healthy. But David J. Brenner, Director of Columbia University’s Center for Radiological Research, has a better idea. Introduce legislation that would establish standards for controlling radiation exposure from CT and other types of scans. And here is my two cents. We need legislation to implement a new, patient-centered policy. When a hospital or doctor chooses to ignore clear warnings regarding patient safety, and that conduct results in injury or death to patients, the hospital faces mandatory, significant fines ranging from $5 million to $25 million, depending on the circumstances: the degree of the hospital’s culpable conduct, and the severity of the injury to patients. The money would go both to the injured patient (or his/her family, in case of death) and to mandatory retraining and oversight of the hospital and/or MDs involved. And there would be no risk that the patient would remain uncompensated, as there would be in the traditional trial setting, where the perverse public relations campaign pushed out by such stellar corporate citizens as Phillip Morris has crept into the minds of jurors, who now view any plaintiff in a lawsuit with suspicion.
As always, I won’t be holding my breath.