Our Unsafe Healthcare System Is The Issue, Not Caps on Tort Settlements

A little-noticed proposal in the President's budget managed to squeak by without a ripple in the media, or comment from savvy political pundits and progressive activists.
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A little-noticed proposal in the President's budget managed to squeak by without a ripple in the media, or comment from savvy political pundits and progressive activists. The President is offering $250 million dollars over four years to the states to test ways to curb medical malpractice tort, further denying the rights of victims to seek justice and redress for medical malpractice. Our President appears to have bought into the conservative flim-flam of frivolous lawsuits and lottery-sized payouts, both of which are non-existent. Even though this issue has been buried for decades, what better time to resurrect it than now, since the budget and deficit are on the minds of all those newly minted deficit "hawks" in DC?

If we're going to have one of those "adult conversations" on this issue, Mr. President, then we need to look at what is the real contributor to the impact medical costs have on the deficit. Congress and the medical community are in denial when it comes to the great harm and costs medical malpractice and in-hospital adverse events from drug reactions, infections, surgery, unnecessary procedures, etc. impose on our health care system, while also inflicting pain and suffering on a generally unsuspecting public. Millions of victims have been invisible and voiceless for too long, with no massive protests in the streets and few advocacy organizations speaking for them, with one notable exception: Public Citizen and its Health Research Group, which has been fighting for patient safety for decades, researching the system's failures and offering up solutions. Public Citizen has been instrumental in removing some of the most dangerous drugs from the market, and their book "Worst Pills, Best Pills" (http://worstpills.org/) by Dr. Sidney Wolfe, Director of their Health Research Group, is an invaluable resource for all who care about their own health and safety.

So, why has there been no massive outcry for change? One reason is that I believe the victims of malpractice suffer from Post-Traumatic Stress Disorder. The betrayal of trust by a doctor leaves mental and emotional scars that do not fade, and the trauma of an avoidable injury, maiming or death of a loved one can sap the strength and resolve of the most resolute among us. The victims' minds are unfocused and unable to organize into a fighting body that can take on the system. Flashbacks can linger for years, even decades.

So what has tort reform to do with our health delivery system? Nothing. It has been a diversion that prevents us from dealing with the terrible truth that when we see a doctor or enter a hospital, there is nothing in place to protect us. Just last week, ABC World News reported about hip, knee and heart valve replacements leaking dangerous chemicals into the bodies of their recipients, including cobalt - yet another example of the FDA failing to protect us and another of the near-daily healthcare horror stories we hear about.

It is our healthcare delivery system that needs an overhaul, not just tort. We must change from a "sick-care" system to a real healthcare system. The "free market" of healthcare delivery fails us on every level. For heaven's sake, even Justin Bieber refers to our healthcare system as "evil," due in part to its being unaffordable. He is Canadian, so he knows what a healthcare system can deliver, noting that in Canada, if you're sick, you just go see the doctor. How simple.

To truly deal with this crisis, there are three main issues that must be addressed:

1. How healthcare is financed and payment is delivered to doctors, hospitals and other providers

2. Tort reform that focuses on overhauling the legal system that addresses medical malpractice

3. Regulation

As Public Citizen recently noted to its membership, "(P)reventable medical errors hurt millions of Americans every year. Many suffer unspeakable pain, become disabled, lose their livelihoods, sometimes even lose their lives, because of these medical errors." 250,000 Americans die each year due to those errors, and close to 900,000 deaths in total per year come as the result of unnecessary surgery, hospital-acquired infections, adverse drug reactions, medical errors, even bedsores. From adverse drug reactions and medical malpractice alone, the number of deaths was 420,000 in 1997, as reported by Dr. Lucien Leape of Harvard. If this isn't a crisis, I don't know what is. The pain and suffering is enormous, and so is the financial cost. It would be reasonable to assume that at least $200 billion or more per year is added onto our national healthcare costs as a result of these errors, and we can anticipate these numbers will continue to rise yearly unless there is intervention and some serious changes begin to take place. Safety must become the major priority, instead of profits. A priority shift is imperative.

Addressing this crisis is one way, Mr. President, of cutting back on the cost of healthcare in America. Your healthcare reform bill will be delivering another 32 million people into the same bloated, unsafe system that exists today. Can any of us recall the last time we read an article about patient safety? This is forbidden fruit to a humungous industry that, according to 2008 statistics from the Bureau of Labor Statistics within the Department of Labor, provides 14.3 million jobs for wage and salaried workers among 595,800 establishments that make up the health industry. Between 2008 and 2018, 3.2 million jobs will be added to this industry, which is one of the fastest growing, thanks in part to those aging boomers. With these numbers, we can understand why the status quo and special interests hold reign. If any other industry had such appalling safety records, they would be shut down. When was the last time we heard "FIRST, DO NO HARM?" Hippocrates must be rolling in his grave.

In truth, the real impact of litigations on our total healthcare costs is a mere 0.55% (Medical Malpractice Claims Negligible, by J. Robert Hunter, Consumer Federation of America in Dispatches in the September 15, 2009 issue of The Progressive Populist) with very few victims even bringing suits against doctors or hospitals. And if there is a settlement, it averages about $42,000 - hardly hitting the lottery, especially with legal counsel collecting 1/3 plus expenses and the insurers (including Medicare) also seeking their share of any legal settlement to cover the costs of care for the injury caused by the malpractice in the first place. The litigation process can drag on for years, which also makes lawyers reluctant to take these cases to begin with.

How much could be accomplished if doctors and hospitals would step up to the plate and meet with the injured party or family of a deceased loved one, explain what went wrong and apologize? Chances are litigation could be avoided, which is what those few hospitals that offer this kind of doctor-patient sharing have discovered. It works. Unfortunately, many doctors find it too hard to admit making mistakes and displaying fallibility. Image-control is everything, and admitting healthcare providers can make mistakes appears to be too much to risk just to do what's right. But mandating doctors come clean would go a long way to resolving so much pain and suffering. This is something that must be addressed in medical school, instead of perpetrating a culture of "catch me if you can."

In 1999 the Institute of Medicine estimated that medical errors cost an estimated $17- $29 billion annually for lost income, lost household production, disability and healthcare. Adjusted for inflation, those numbers become $22.1-$37.7 billion today. The Department of Health and Human Services estimates the cost to Medicare at $4.4 billion per year for medical errors. It is abundantly clear that if we are to finally have a safe healthcare system - after decades of evasion, deaths and injury - we must overhaul the way care is delivered, which will create safer healthcare and, in turn, less malpractice, helping to reduce costs. After all, haven't we a right to expect safety and responsibility in the best healthcare system in the world?

Right now, the Judiciary Committee in the House is working on the tort issue, and a leading voice on the Committee is Rep. Phil Gingrey (R-GA), a former obstetrician who was sued 4 times for medical malpractice. He actually ran for Congress in 2002 and won while he was being sued. One suit was dropped, and the others settled. This man is writing key legislation that would severely cap malpractice settlements - little more than the fox building the henhouse. Apparently there is no such thing as recusing oneself due to a personal agenda in a Congressional committee. But, hey, since when is it news to mention a conflict of interest in Congress?

In 1999, the IOM's landmark study "TO ERR IS HUMAN" reported up to 98,000 deaths each year in the US from "doctors' errors." The study shook the nation. Today those numbers are considerably greater. It would seem that it is time for the IOM to revisit the numbers and also come up with positive solutions, joined by the agency that addresses quality in healthcare, the Agency for Healthcare Research and Quality (AHRQ). One of its missions should be to code every possible kind of medical error and other adverse events in hospitals and medical facilities, along with mandating the reporting of such events. Hospital accreditation is based on GOOD performance, so do we really know how much may be underreported? Bring in leading academic voices for safety, like Dr. Leape and Dr. Stanley Wolfe from Public Citizen, who has spent decades on this problem.

Additional ways to address this crisis could be the creation of a NATIONAL MEDICAL SAFETY BOARD, an independent entity modeled on the NTSB, with an advocate similar to Elizabeth Warren at its helm. We must also develop a new paradigm for the states' OPMC (Office of Professional Medical Conduct), which currently monitor doctors' performances and renders disciplinary action, but only after a complaint is registered. OPMC's are monitoring and reporting doctor misdeeds less and less, ineffective and reactive rather than being the preventive and proactive agencies they should be. An NMSB could chart regional doctors' errors in medical outcomes and then act as a consulting party to the states OPMC's and make recommendations to implement safety measures - a Federal/State dialogue and a unique partnership supporting patient safety. Another good start for the overhaul of all state OPMC's would be to recruit all of their Commissioners from the professional medical ranks, and not have them appointed by the Governors, which politicizes the post and contributes to their inaction and tendency to cover up and shut down cases following complaints.

Real solutions to all of the above could be addressed with the passage of H.R. 676, reintroduced last week in Congress by Rep. John Conyers (D-MI), an Expanded and Improved Medicare For All Act delivered by a single payer.

Mr. President, if you are serious about this issue - and you should be - I would be glad to bring a group of malpractice victims to the White House who will offer up serious, real-world solutions to this issue. They know first hand how the system has failed them. No "Lite" beers, however; only the real deal. Our talk might even include finally establishing a coherent National Health Policy, which is long overdue.

For much more on these issues, please go to www.citizens-for-medical-safety.com, www.citizen.org/medical-error-stories and my Huffington Post article story on Christina Zisa, a victim of this crisis, http://www.huffingtonpost.com/pearl-korn/in-memoriam-christina-zis_b_814356.html.

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