Bush, Congress Must Combat Both Medical Lawsuits and Errors

Posted February 16, 2005 at 2:16pm

Bush, Congress Must Combat Both Medical Lawsuits and Errors Once again this year, it looks as though Congress will fail to pass medical malpractice reform — or do very much about its twin problem, the medical errors that kill or hurt thousands of people every year. [IMGCAP(1)]

As has happened in the past, the House is likely to approve caps on non-economic damages (“pain and suffering”) in malpractice litigation, but the legislation will be stymied in the Senate.

That body did just pass a major item on the GOP/business tort reform agenda — limits on class-action lawsuits — but knowledgeable lobbyists say that the trial lawyer lobby retains enough power among both Democrats and Republicans to kill medical malpractice reform, despite President Bush’s urgent campaigning.

Bush speaks frequently about the need to control “frivolous lawsuits” and surging malpractice insurance premiums that are blamed for driving emergency room doctors, obstetricians and neurosurgeons out of business.

Malpractice reform — principally, a $250,000 cap on non-economic damages — is a key item on Bush’s agenda for containing double-digit increases in health care costs.

An administration study showed that about $28 billion is spent each year on the combination of malpractice litigation and the “defensive medicine” that doctors and hospitals perform, including extra tests and unnecessary procedures, to protect themselves against lawsuits.

Opponents point out that while this is a huge sum, it still represents only a sliver of the nation’s $2 trillion annual health bill.

But a new study by the Joint Commission on the Accreditation of Healthcare Organizations suggests there are other downsides to the current malpractice system. Among other things, the commission says, “the stifling specter of litigation results in the under-reporting of adverse events by physicians and avoidance of open communications with patients about error.”

In a landmark 1999 study, the National Academy of Science’s Institute of Medicine reported that 44,000 to 98,000 Americans die every year because of preventable medical errors.

That report has led to heightened consciousness about quality control in health care, outcomes-based medicine and the need for medical records to be computerized.

However, as one of the authors of the IOM study, Lucian Leape of Harvard University, told correspondent Susan Dentzer on PBS’ “NewsHour with Jim Lehrer” last week, the report “called for a national commitment, a moonshot, a serious effort to reduce medical errors.”

“We said we could reduce medical errors by 50 percent in five years if we had that kind of national commitment.” But it has yet to happen. Leape said, “There’s been a bill before Congress every year for the past four years to provide protection, and we just don’t seem to be able to get it passed.”

Mainly, what Congress and the administration have done is to authorize pilot studies and demonstration projects on quality control and information technology.

A year ago, then-Secretary of Health and Human Services Tommy Thompson asked for $50 million to advance electronic record-keeping, but the money was excluded from Bush’s budget.

That money now has been added to the 2005 supplemental budget for Iraq and Afghanistan, and Bush’s 2006 budget calls for $125 million in health information technology demonstration projects — but this is still well short of a “moonshot.”

In addition, the administration has called for no increase for the Agency for Healthcare Research and Quality, which gathers and disseminates best-practices information for doctors and patients.

Dentzer’s segment on PBS addressed extensive efforts at Veterans’ Affairs hospitals to avoid errors, including “wrong site” surgeries. The VA official in charge of quality told her that 44 percent of incorrect surgeries involved operations on the wrong side of the body. And 36 percent were on the wrong patient.

This is not only a problem for the VA. One California expert told Dentzer, “Everybody — every doctor, every nurse, every hospital — knows we have a terrible problem and they are really desperate. Just think, if a jumbo jet were crashing every day what we would be doing about the problem.”

If medical errors kill 98,000 Americans a year, that’s about 270 people a day — roughly the number aboard a Boeing 747.

Medical errors are the reason that patients or their families sue doctors and hospitals, but the JCAHO report noted that several studies have shown that litigation is an ineffective means of dealing with the problem.

One Harvard study found that only 2 percent of negligent injuries resulted in successful claims against providers and only 17 percent of claims appeared to involve negligent injury.

“Few injured patients receive compensation through the medical liability system, and those who do receive variable recompense, even for injuries that appear to be quite similar,” the JCAHO report found.

Experience from the states indicates that the kind of caps Bush proposes on jury awards do result in fewer lawsuits being filed and reduced medical insurance premiums.

But the study found that “an unintended consequence of the tort system is that it inspires suppression of the very information necessary to build safer systems of health care delivery.”

“When it comes to acknowledging and reporting medical error, there is too often silence between practitioners and patients, practitioners and their peers, practitioners and the organizations in which they practice and health care organizations and oversight agencies.”

The group suggested passage of legislation to guard providers who report and apologize for medical errors from having their statements used against them, plus measures to encourage mediation and early settlement offers to keep cases out of court.

Democrats, even though they are closely tied politically to the trial lawyer lobby, have suggested some compromises on the medical malpractice front that medical groups and Republicans should consider.

Both sides should consider a higher cap than $250,000 on non-economic damages if that will produce an agreement. Last year, it was not enough.

But even beyond seeking bipartisanship on controlling lawsuits, it’s long past time for a major effort to stop medical errors. There are better, easier and cheaper ways than litigation to prevent removal of the wrong limb or breast. Congress ought to foster them.