Michael Townes Watson

Be Wary of “Sparkling, Innovative” Reforms

An article appeared in the Providence Journal on June 3, 2007, about a patient that went to Brigham & Women’s Hospital for an ankle replacement eight years ago.

She expected to be home in two days. She knew she would be on crutches and have to take four weeks out of work, but she was used to having surgery, since she was born with two club feet, and this was the 20th procedure she’d undergone in her 37 years. She woke up two days later, “tubes everywhere,” with her husband crying at her side. He explained to her that she’d had a reaction to the anesthesia, and doctors were forced to perform open-heart surgery.

But, she said that nobody would talk about it. Not one person asked her husband if there was anything he needed. Unbeknownst to her, the anesthesiologist from her surgery was desperate to talk to her. He wanted to ask her how she was doing. He wanted to express concern, regret, sympathy — basic human emotions — but his colleagues discouraged him from doing so. When he sent the patient a letter explaining what happened, she called the anesthesiologist, they talked and she offered forgiveness. For the anesthesiologist, “the most powerful part of that conversation was her offering me forgiveness. It was a completely liberating experience. All of a sudden, I didn’t have any more baggage,” he said.

While the article is a good story about how patients are not really lawsuit-hungry vindictive people, it is also a story about the insurance companies’ attempts to use a new technique to disrupt patients’ access to the courts. Instead of proposing legislation that would exclude from evidence the apologies made by healthcare providers, now they are attempting to shield from evidence all of the communications of the hospitals, doctors and nurses for the adverse outcome.

The patient in the Providence Journal story founded a Boston-based nonprofit group, to bring attention to the issue of the silence in the face of medical error. She travels around the country, urging doctors, hospitals, insurers and policymakers to change their policies and practices to allow doctors to talk to patients and patients’ relatives after something bad happens. She says that “oftentimes, patients are left with no answers because as soon as something happens that wasn’t supposed to, everybody retreats to their corners and clams up.”

Much of the proposed legislation supporting evidentiary exclusion of the apologies of healthcare providers goes way beyond just excluding the apology. It attempts to exclude from the jury all other explanations of the outcome or its cause. Advocates of change should not support legislation that would also protect all statements or writings a doctor makes to a patient or a patient’s family regarding the outcome of such patient’s medical care and treatment. Such bills are over-broad and unfair.

After the University of Michigan hospital system implemented a full-disclosure policy in 2002, the number of lawsuits filed against the hospitals each year dropped by half, and the system’s insurer was able to cut the amount of money it sets aside for potential malpractice judgments by two-thirds. Click here for more on this.

That accomplishment was in the absence of “I’m sorry” legislation. So, there is much that is inherently right with allowing doctors to apologize, but we should not give them the freedom, without impunity, to try to say things to deter the harmed patient from choosing to seek compensation.

We should have learned by now that hospitals, doctors and insurance companies seek overbroad “tort reforms” that are not supported by the facts and do not increase access to healthcare or the safety of our healthcare. In Mississippi’s Clarion-Ledger, it is reported that notwithstanding the ballyhoo when tort reform was enacted by the 2004 Legislature, the doctor-owned medical malpractice insurance company which covers the bulk of the state's doctors says the 2004 legislation brought about no dramatic change in premiums.

Tennessee state representative, House Judiciary Committee Chairman Rob Briley, who helped shepherd a bipartisan effort to limit “frivolous medical malpractice lawsuits" during this past session said he was glad the measure did not pass. He said supporters of the medical malpractice bill exaggerated the need for limits on malpractice lawsuits. "It was premature. It didn't need to pass,'' Briley said during a House floor session. "We didn't need tort reform in this state.'' He also said there hadn't been an increase in juries awarding large damages to patients nor was the standard of medical care decreasing, as tort reform supporters have indicated.

A May 24, 2007 United Press International article reports states that, despite the fact that there is no malpractice crisis, Congress is considering The Fair and Reliable Medical Justice Act, which would give 10 states grants to establish special health courts devoted specifically to resolving medical malpractice claims. Instead of jury trials in regular court, malpractice cases would be heard by medical experts in a setting similar to small-claims court. Courts would encourage the disclosure of medical errors, and these data would be collected and analyzed by states with pilot projects. The problems of medical malpractice "affect all patients, all physicians, all families and all businesses," said Doug Laube, immediate past president of the American College of Obstetricians and Gynecologists, one of several physician groups endorsing the bill. The proposal would "provide states with critical financial support to explore and test alternatives."

We must be wary of efforts to portray our justice system as somehow perverse or in need of dramatic change, when the facts have shown that there was never a “medical malpractice crisis.” We should be skeptical of those who claim that they are advocating changes in the justice system because they want better access to healthcare. As was poignantly stated by Senator Clinton in the latest Democratic Presidential Candidate Debate, "What's important … is you've got to have the political will" to fight against the insurance and pharmaceutical companies.

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Posted at 10:17 AM, Jun 11, 2007 in
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