Michael Townes Watson
Medical Malpractice Reforms Don’t Increase Healthcare Safety
The sacrifices being made by injured patients who are victimized by the tort reform movement are not being offset by improvements in the safety of healthcare. On the Alternet website, Dr. Atul Gawande, who has written extensively about medical mistakes, states that “One of the easiest ways to prevent the spread of hospital infections is also one of the most neglected.” He has toured hospitals with infectious disease specialists and microbiologists whose sole jobs are to stop the spread of infections in the hospital. He laments, however, that despite the fact that every year two million Americans acquire an infection while they are in the hospital, and the fact that ninety thousand die of that infection, the hardest part of the infection-control team's job is not coping with the variety of contagions they encounter or the panic that sometimes occurs among patients and staff. Instead, their greatest difficulty is getting clinicians to do the one thing that consistently halts the spread of infections: wash our hands.
We can’t, however, take comfort in the knowledge that the justice system will be available for people who are hurt by the failings of the hospital systems. This week, alone, I have seen news of a number of different incidents of clear malpractice where the victims have either been deprived of their day in court or have had to move heaven and earth to get even a small measure of justice. Here are some examples:
(1) In a Chicago suburb, a jury deliberated nearly nine hours before awarding $3 million to a brain-damaged victim in a medical malpractice suit. The suit was filed against an orthopedic surgeon and anesthesiologist whose medical actions left him with brain damage.
About three hours into the surgery, the anesthesiologist informed the orthopedic surgeon that some of the patient's monitoring equipment had malfunctioned, but the surgery was continued.
An hour later, the patient went into cardiac arrest and a coma, and was diagnosed with permanent brain damage due to lack of oxygen during the surgery. A medical review panel of three doctors ruled that the doctors had breached the standard of care during surgery and caused the injuries. Nonetheless, the doctors chose to ignore the findings of the medical review panel and proceed to trial, standing on the flimsy defenses they maintained. They still vow to appeal the verdict, still depriving the brain-damaged victim of compensation.
(2) In Florida, a 59- year old patient was killed over four years ago, and her family still awaits the outcome of her case. After having a relatively uncomplicated knee replacement, she became nauseated and vomited. The next day, after some tests and procedures to determine the cause, she violently vomited and aspirated, causing an infection, that later caused her organs to shut down, ending in her death.
(3) A Baltimore obstetrician was found liable for medical malpractice and ordered by a city jury to pay $8.1 million to the parents of a baby boy he delivered in 2003. The jury found that the doctor was responsible for the brain damage suffered by an infant Caleb Spence during a difficult delivery. But the damages would be limited to just over $2.1 million under Maryland law putting a cap on awards for pain and suffering. We still see evidence that the reforms enacted to curb malpractice litigation are not benefiting anyone other than the insurance companies. A story from Wyoming says that the screening panels, put in place there to limit frivolous malpractice cases, are not having any impact on medical malpractice liability costs for physicians and other health care providers.
So, when malpractice occurs, the victims end up without timely or adequate compensation, while the insurance companies are still able to focus the public’s attention on what they claim are “out of control jury verdicts” and “frivolous lawsuits.” Yet, there is no doubt that we have too many hospital errors, not only with infections, but also with prescribing and dispensing medication. The Institute for Healthcare Improvement has engaged in its campaign to save five million lives over the next ten years. Their website states that it’s hard to imagine medical practice today without the use of painkillers, sedatives, and blood thinners. But some of the most powerful drugs prescribed to patients can also cause harm, earning them the dubious distinction of “high-alert medications.” The classification is helping those concerned with patient safety to draw attention to the risks associated with certain drugs, even when used as intended, and the steps that can be taken to prevent injury. Reducing harm from high-alert medications is one of the interventions in IHI’s 5 Million Lives Campaign, a follow-on to the successful 100,000 Lives Campaign, and launched in December 2006 to help hospitals reduce medical harm by targeting now 12 areas for dramatic improvement. “Most hospitals have been working to improve the safety of high-alert medications for a long time,” says Frank Federico, RPh, an IHI Director. “But when you ask if they still need help with it, there is a resounding ‘yes.’”
Former secretary of the U.S. Department of Health and Human Services, Tommy Thompson, a Republican candidate for the 2008 presidential nomination, told about 250 students and administrators his plans for improving America's health. He also talked about health care during a 45-minute discussion with Des Moines Register reporters and editors. Thompson's remarks ranged from common-sense cures, such as "eat only 50 percent of what's on your plate" to specific statistics on how many doctors - 92 percent - open their patients up to medical errors by using handwritten prescriptions instead of "e-prescriptions."
The insurance companies and their rhetoric have made us believe that the debate over healthcare error is something new that has been cooked up by a bunch of trial lawyers looking for a way to make a buck. Yet, Dr. Gawande writes that medical errors are nothing new. In 1847, a Viennese obstetrician famously deduced that, by not washing their hands consistently or well enough, doctors were themselves to blame for childbed fever. Childbed fever, also known as puerperal fever, was the leading cause of maternal death in childbirth in the era before antibiotics (and before the recognition that germs are the agents of infectious disease). He states that, in his own hospital, despite the availability of antibacterial gel, the compliance rates for proper hand hygiene improved substantially: from around 40 percent to 70 percent, but hospital infection rates did not drop one iota. If 30 percent of the time people didn't wash their hands, that still left plenty of opportunity to keep transmitting infections. Indeed, the rates of resistant infections continued to rise.
Instead of the focus on making changes in the tort laws to help insurance companies, let’s focus on the things that can matter most to the safety measures practiced by the healthcare professionals. If we can move away from the debate about how to save insurance companies money, and on to the debate about saving lives and preventing injuries, we would be much better off in terms of dollars spent on healthcare and healthy humans available for work and play.