Tag Archives: health care

Tort Reform Didn’t Work in Texas

Patrick Barry – current president of the Rhode Island Association for Justice and also member of the Rhode Island Board of Medical Licensure and Discipline – has a great Op-Ed in response to Richard Weekly’s Op-Ed some weeks earlier.  For health care and legal professionals, this piece is a must-read:

RICHARD WEEKLEY’S Oct 20 Commentary piece, “Tort reform helps Texas health care,” is a strange selection to print. Imposing Texas-style, one-size-fits-all caps on awards to the most seriously injured patients would not help improve health care. To the contrary, the truth about the Texas experiment reveals that significant restrictions on patients’ rights lead only to increased cost, increased danger, and poor health care.

Texas is widely considered to have some of the most restrictive civil-justice laws in the country, enacted in 2003. An arbitrary cap of $250,000 (without exception) on non-economic damages, immunity for admittedly negligent acts in “emergency” care, and onerous procedural requirements for even the most qualified and credentialed expert witnesses are viewed by the insurance industry as a model. Six years after these reforms, however, it is clear that the experiment has failed, and that the promises of “tort reform” are and always have been a sham.

Here are the facts about health care in Texas:

Health care in Texas ranks among the overall worst in the nation, according to a recent article in the Dallas Morning News and a study by the Commonwealth Fund.

Texas was ranked last in access to health care statewide, and in a measure of how minorities and low-income patients fared in the state’s medical system.

Texas was given grades of D-plus in Access to Emergency Care, Quality and Patient Safety, and Public Health and Injury Protection by the American College of Emergency Physicians in its 2006 report card.

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A Doctor’s Perspective on Tort Reform and Medical Malpractice

Rahul K. Parikh, M.D. has a great article in Salon about the myths of malpractice costs and tort reform:

Flu season has come early and I’m writing far too many prescriptions for Tamiflu. I’m trying my best to adhere to the guidelines set by the Centers for Disease Control for who should get the drug (kids under 5 years of age, or kids who have a chronic illness like asthma or diabetes). But in more than a few instances, I’ve ignored the guidelines and given Tamiflu to perfectly healthy kids with no risk factors for influenza-related complications.

Part of the reason I’m writing so many extra prescriptions stems from stories about healthy people getting sick with H1N1 and ending up critically ill or dead. One of those stories aired recently on “60 Minutes” — a healthy high school football player in Arkansas developed a fever after a game. He went to his doctor, who thought he had a garden variety flu and sent him home. Two days later, the boy collapsed and was airlifted to the nearest pediatric intensive care unit. He developed a bacterial pneumonia on top of his H1N1 flu, which led to severe damage to his lungs. He couldn’t breathe on his own, so he remains in the ICU on a ventilator.

The H1N1 strain of influenza is no more lethal than any other strain of flu. Mortality is less than 1 percent. Nevertheless, by over-prescribing an expensive drug that has only marginal benefits, I’m unequivocally practicing what is known as defensive medicine. As in, the kind of medicine that protects doctors as much as patients.

Mine isn’t an extreme example of defensive medicine. I’m a pediatrician. Obstetricians and emergency room doctors are sued at far higher rates, and would have more dramatic stories to share. But my motivations are the same as theirs: I’m afraid that if I don’t do something, one of my patients may get sick or die, and I’ll end up in court being asked why I didn’t do everything I could have.

Defensive medicine is just one of the supposed systemic ills that doctors, doctors’ lobbies and doctors’ insurers invoke when they shill for what they call malpractice reform. Proponents of reform say that defensive medicine, frivolous lawsuits and high premiums are behind the surge in healthcare expenses. They insist that malpractice costs are forcing doctors to close their doors and depriving patients of care. Recently, three past presidents of the American Medical Association coauthored an opinion piece for the Wall Street Journal that bundled all of these arguments into an attack on the public option. Their piece attempted to shift the blame for America’s healthcare crisis away from private insurers and onto a supposed scourge of ambulance chasers. “The nation needs comprehensive medical malpractice reform,” they wrote. “It is the surest and quickest way to slow down the rising cost of healthcare.”

Their refrain is familiar to anybody following the healthcare reform debate. The only problem is that it’s not true. There’s nothing “sure or quick” about changing medical liability laws that will improve healthcare or its costs. Defensive medicine adds very little to healthcare’s price tag, and rising malpractice premiums have had very little impact on access to care.

Let’s look at the numbers. First, based on the current rhetoric, it’s easy to assume we have an epidemic of malpractice suits in America. We don’t.

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Another Wrong Site Surgery at RI Hospital

More bad news from RI Hospital:

A surgeon at Rhode Island Hospital operated on the wrong finger during outpatient hand surgery on Thursday, a hospital statement acknowledged Friday morning. It was the fifth wrong-site surgery at Rhode Island Hospital, and the sixth in the state, since 2007.

The patient was scheduled for surgery on two fingers. A joint on one finger underwent a procedure intended for another finger, hospital president Timothy J. Babineau said in a letter to employees.

“The patient subsequently underwent surgery on the correct finger and joint, did well and was discharged home later that day,” Babineau’s letter said. “The surgeon discussed the error with the patient and, in keeping with our policy, the Department of Health was immediately notified.” The hospital said it would not disclose further details about the surgery to protect the patient’s confidentiality.

State law requires hospitals to notify the Health Department of major incidents within 24 hours. Annemarie Beardsworth, Health Department spokeswoman, said that an investigator is at the hospital now.

“Overall, we’re frustrated and we’re seriously concerned that this seems to be a continuing pattern at Rhode Island Hospital,” Beardsworth said. The results of the Health Department investigation will not be available immediately.

Thankfully, medical negligence attorneys are holding doctors accountable for cases of medical negligence such as this.  If you have been unfortunate enough to have been a victim of a surgical error, such as wrong-site surgery, you should consider speaking with a medical negligence attorney about your rights.  Further, if you have an upcoming surgery, there are several steps that you can take to protect yourself:

  1. Ensure that your hospital follows the 2004 Universal Protocol issue by the Joint Commission, the national agency that accredits hospitals: (a) before you start to operate, verify that you are doing the right procedure on the correct part of the right patient;  (b) mark the site of surgery ahead of time; and (c) take a “time-out” right before surgery to make sure everything is in order.
  2. Ask that the surgical team frequently asks you questions requiring an active response, including name and procedure with site and/or side – especially prior to sedation.
  3. Ensure that two or more surgical team members are assigned to perform an independent verification and reconciliation of the schedule, consent, and history and physical.
  4. Ensure that the surgical staff is educated regarding the site of the surgery and ensure that the mark is visible when you are prepped, draped, positioned, and during the time out.
  5. Ensure that the site is marked unambiguously (with a skin marker, not a ballpoint pen) and in agreement with your understanding of the procedure.

The Pennsylvania Patient Safety Authority has much more information worth reviewing here.

Some MRI Patients injected with a GE dye develop Disease

Here is an interesting article from Business Week on the possible side effects of a dye used in some MRIs and possible consequences for people with weak kidneys:

In May 2006 medical regulators in Denmark issued a warning that signaled trouble for General Electric (GE). Danish researchers noted that, over a four-year period, 25 patients in Denmark and Austria had suffered a rare and crippling disease after undergoing an MRI, the scanning procedure used to diagnose everything from brain tumors to blown knees. The patients had been injected with a GE dye that makes images more distinct. They all had weak kidneys before receiving the dye. The GE product, Omniscan, has since been linked to other cases of the disease, which appears to affect only MRI patients who have kidney problems. Similar drugs made by Bayer (BAY) and others have also been tied to the sometimes fatal ailment, nephrogenic systemic fibrosis (NSF).

Tarricone: Healthcare reform bill should reduce medical errors, not limit patients’ rights

AAJ President Anthony Tarricone penned a fiery opinion piece in Politico last week:

August was quite the month in the ongoing health care saga. Death panels. Scaring seniors. Angry mobs discovering new villains to blame for the terrible health care system we find ourselves having to fix today.

And then we have the tried-and-tested scapegoat for all of America’s ills and woes: trial lawyers.

Let’s face it: Trial lawyers — and all attorneys, for that matter — aren’t revered by the public at large (unless you need one). But for those who want to stick it to the trial bar, this bill is your chance. We can lower costs, help cover the uninsured and even put trial lawyers out of business.

No, it’s not tort reform. We’re demanding solutions that actually work. And preventing medical errors in the first place — an epidemic that plagues our entire health care system — will result in less litigation, lower costs and healthier patients.

Let’s cut the wheat from the chaff: Tort reform will do nothing to fix health care. Forty-six states have already done it, and costs have continued to skyrocket. The Congressional Budget Office and Government Accountability Office have said tort reform will save practically no money, and they found no evidence of defensive medicine. Medical malpractice suits are less than 1 percent of all civil filings — and this has declined 8 percent during the past decade. The research is definitive and absolute, and those claiming otherwise are just trying to obstruct health care reform altogether.

Obama, Medical Malpractice and Tort Reform

President Barack Obama continued to vaguely endorse conservative ideas such as efforts to prevent victims of medical malpractice from winning compensation in the civil justice system in his health care speech last night:

The AP reports that in his speech before a joint session of Congress last night pushing his ideas for healthcare reform, President Obama said “that he wants to look at a ‘range of ideas’ to ‘put patient safety first and let doctors focus on practicing medicine.’ Obama says some in Congress believe medical malpractice reform can help bring down health care costs. He says he doesn’t think it’s a ‘silver bullet,’ but that he knows that doctors practicing ‘defensive medicine’ can lead to unnecessary costs.

But, the reality is, as McClatchy notes, “[f]ew causes in the healthcare debate draw more support than tort reform — the idea of reining in frivolous lawsuits that lead to unjust cash awards, soaring malpractice premiums and “defensive medicine,” the unnecessary tests ordered by doctors to avoid being sued.”

However, according to the McClatchy analysis, “despite the perception that ‘jackpot justice’ has fueled soaring costs, hard data yield a much different picture.” McClatchy reports that the “most reliable estimates peg the costs of malpractice litigation at less than 2 percent of overall healthcare costs. And while tort reform measures have helped tamp down malpractice premiums, national health spending continues to rise.” Moreover, it is not “clear that jackpot justice, as opposed to declines in insurers’ investment income, is to blame for rising malpractice premiums.” This “suggests that a tort system run amok is, at best, only a small contributor to the nation’s healthcare costs.” (emphasis added)

McClatchy has got it right.  As demonstrated by the recent Hearst expose on massive, nationwide medical errors – Dead by Mistake – it is clear that the civil justice system is the only true defense for consumers against medical errors – which are the THIRD leading cause of death in the United States.  Further, the CBO reports that malpractice claims make up less than 1% of the health care costs in America.  So, even if you completely eliminated all malpractice claims, 99% of the costs would still be present.

It should be also be noted that in Texas – the state with the most stringent caps on medical malpractice lawsuits – health care costs remain the highest in the country.  A June 1, 2009, New Yorker magazine article by Dr. Atul Gawande, “The Cost Conundrum; What a Texas town can teach us about health care,” explored why the town of McAllen, Texas, “was the country’s most expensive place for health care.”  The following exchange took place with a group of doctors and Dr. Gawande:

“It’s malpractice,” a family physician who had practiced here for thirty-three years said. “McAllen is legal hell,” the cardiologist agreed.  Doctors order unnecessary tests just to protect themselves, he said. Everyone thought the lawyers here were worse than elsewhere.

That explanation puzzled me. Several years ago, Texas passed a tough malpractice law that capped pain-and-suffering awards at two hundred and fifty thousand dollars. Didn’t lawsuits go down?  “Practically to zero,” the cardiologist admitted.

“Come on,” the general surgeon finally said. “We all know these arguments are bullshit. There is overutilization here, pure and simple.” Doctors, he said, were racking up charges with extra tests, services, and procedures.

Here’s the real issue.  Many doctors are not ordering additional tests to avoid being sued, they are ordering additional tests to get paid. Here’s more from the Op-Ed cited above:

The Dartmouth Institute for Health Policy has reported that Medicare spending in Texas increased by almost 25 percent in the three years following that state’s adoption of restrictive tort laws. In fact, a University of Alabama study, published in the December 2008 issue of Health Sciences Review, reviewed data from 27 states that already have laws restricting torts and found that such laws do not impact the practice of defensive medicine and have not resulted in cost savings for healthcare consumers. Another 2008 study, published in the MIT Quarterly Journal of Economics, addressed the myth of defensive medicine as it related to the practice of obstetrics. After reviewing the vital statistics of millions of births, the authors concluded that tort restriction does not reduce the cost associated with the practice of defensive medicine.

If defensive medicine is not the reason for the high cost healthcare, then what is?

In Dr. Gawande’s article, he looked to the Mayo Clinic as an example of top quality healthcare at a low cost and asked how it was achieved. The Mayo Clinic managed this feat by putting the patient’s needs first. They eliminated financial incentives to order excessive testing and procedures by paying the medical staff salaries rather than having a fee for services model.

Here in Massachusetts, it appears we are independently reaching the same conclusion. On July 16, 2009, a Special Commission on the Health Care Payment System recommended to Governor Patrick that Massachusetts eliminate the fee for services model of paying physicians. In the alternative, physicians would be grouped into networks responsible for patients’ well-being and they would receive salaries – like the physicians at the Mayo Clinic.

Tort restriction harms those who have already been harmed irreparably and does absolutely nothing to reform healthcare or control its related cost.

Let’s reform the way that doctors are compensated, so that wellness and preventative care is rewarded, and work to reduce health problems AND medical errors. THAT’S real reform.

New Rules Aim to Protect Patient Privacy

A little-noted provision of this year’s economic stimulus package may protect consumers from marketing firms who purchase personal health information, the New York Times reports. Under the new rules, pharmacy benefit managers and others would be prohibited from disclosing patient information to third parties. The rules also take steps to increase regulation and potential civil liability for the medical data mining industry.

Sedative Abuse on the Rise Among Medical Professionals, Experts Fear

A growing number of medical professionals are abusing the same drug administered to Michael Jackson shortly before he died, according to the New York Times. Experts say that the drug propofol, which can induce relaxation, mild euphoria or sleep, is favored by abusers because it is difficult to detect and is not a federally controlled substance. It is also easily accessible, especially for medical professionals. A recent survey found that 71 percent of anesthesiology training programs did not actively secure or track the drug.

Celebrate Patient Safety Day the Right Way

Patrick Malone, writing in the Huffington Post, reminds us the best way to celebrate Patient Safety Day on July 25th.  For those of you who don’t know, Malone is a renowned attorney and the author of The Life You Save: Nine Steps to Finding the Best Medical Care—and Avoiding the Worst (in stores: July 2009).

These patient safety advocates are laypeople who have turned their own tragic losses — of husbands, wives, sons and daughters — into personal crusades to make our hospitals and clinics cleaner, safer places so that others won’t have to go through the pain they have experienced. And one demand that many of them express is that the medical industry become more open and honest in dealing with its tragic mistakes — so that errors can become learning experiences.

Candlelight vigils are taking place across the country on Saturday to mark this date. The advocates who started this quiet annual commemoration do not have, for the most part, medical or nursing degrees, but they know patients and their families can make valuable contributions to improving the quality and safety of the health care system. I learned many of their stories while researching my book on how patients can protect themselves and get the best medical care by becoming active participants in their own care. These heroes of patient safety include people like:

• Sorrel King, a former fashion designer who lost her daughter Josie at age 18 months from neglect and an overdose of drugs at Johns Hopkins Hospital. Ms. King and her husband Tony set up a foundation in Josie’s name that promotes a family-activated “rapid response team,” a formal mechanism in hospitals that lets families call in a team when the patient seems to be deteriorating but hasn’t yet hit a full Code Blue crisis.

Click here to keep reading.

Update on Health Care Reform and Issues of Medical Negligence

Here is an excerpt from the lastest update from new AAJ president Anthony Tarricone:

The amendments defeated [in the health care reform bill] include the Burgess Amendment that would apply overall caps and other severe restrictions on medical malpractice awards, another Burgess Amendment that would have applied caps to injured patients who receive Medicare or Medicaid benefits, and the Deal amendment that would have applied the Federal Tort Claims Act (FTCA) to emergency room doctors with private insurance. Another victory for our clients includes passage of the Pallone Amendment that moved community health center volunteers currently immune under the Volunteer Protection Act (VPA) to FTCA coverage, thereby treating them the same as paid workers at community health centers.

While more medical malpractice amendments were filed, these amendments were not offered in an agreement worked out between Rep. Bart Gordon (D-TN), the author of four of the amendments, and Chairman Henry Waxman (D-CA). In exchange for Rep. Gordon dropping the most extreme provisions, Chairman Waxman accepted language that would create a federal payment incentive for states that pass either a certificate or merit, which 21 states have already passed, or an early offers program, such as Sorry Works. We will continue to work with House leadership as they work to prepare the bill for floor consideration in September.

If you an advocate for the civil justice system, remember to have your clients – those first injured by negligence and subsequently injured by ‘tort reform’ – talk to their Congressional representatives during the August recess.

Study Links Tanning Beds and Cancer

A new study has concluded that the use of tanning beds raised the risk of skin cancer by 75 percent among persons who began tanning before age 30. The risk assessment, produced by the International Agency for Research on Cancer, now classifies tanning beds in the same category as carcinogens such as cigarettes. The study appears in the medical journal Lancet Oncology.

Congressman Kennedy Blogs on (Mental) Health Care Reform

This morning, Congressman Patrick Kennedy blogged on The Huffington Post and argued for greater integration of mental health services in the health care reform discussions.

Last year, a bill I introduced called the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act became law. On that day, a monumental victory was achieved for the over 25% of Americans who no longer have to face discrimination from their insurers when it comes to their mental health care. That day was a victory for Americans everywhere, as a civil rights gap was closed in this country, and a long standing form of discrimination was ended. I am proud to say that this victory was expounded upon in the health care reform bill currently before the House of Representatives. It is clear that the 113 million Americans with mental illnesses whose coverage was improved by mental health parity were heard loud and clear with the passage of mental health parity — discrimination will no longer be tolerated, and our minds can no longer be treated as separate from our bodies.

Click here to keep reading.

First Circuit Upholds Clinic Buffer Law

The First US Circuit Court of Appeals in Boston ruled Wednesday that a Massachusetts law that bans protesters from a 35-foot buffer zone around abortion clinic entrances does not infringe on the free speech rights of protesters.

The opinion, written by Rhode Islander Bruce Selya (in senior status), begins as follows:

For more than three decades, those who advocate for a woman’s right to choose and those who advocate for the right to life (based on a belief that life begins at the moment of conception) have struggled for advantage in the marketplace of ideas. A series of pitched battles, forming a part of this struggle, has been waged at free-standing abortion clinics, where protestors and anti-abortion counselors seek to dissuade prospective patients, shame clinic workers, and call attention to what they perceive as the evils of voluntary terminations of pregnancies. In this campaign Massachusetts has been a battleground state.

This appeal arises out of yet another skirmish in this chronicle of discord. In a very real sense, genesis of the appeal dates back to the dawning of the millennium. At that time, the Massachusetts legislature enacted a statute that created a floating buffer zone around the entrances, exits, and driveways of abortion clinics throughout the state. Footnote

Given the benefit of hindsight, the legislature revised the law seven years later. The modified version of the statute replaced the floating buffer zone with a 35-foot fixed buffer zone. This appeal involves a multi-pronged facial challenge to the constitutionality of the modified statute.

In a thoughtful and comprehensive opinion, the district court rejected the facial challenge in all its iterations and refused to enjoin enforcement of the new law. McCullen v. Coakley, 573 F. Supp. 2d 382 (D. Mass. 2008). After careful consideration of the record, the parties’ briefs, some helpful friend-of-the-court briefs, and the arguments made orally, we affirm.

Another Wrong Site Surgery in Rhode Island

Tragic news from Hasbro Children’s hospital.

A surgeon on Monday began operating on the wrong part of a child’s mouth during surgery to correct a cleft palate at Hasbro Children’s Hospital, the fifth wrong-site surgery in Rhode Island since 2007.

The error was noticed during surgery and the correct procedure then performed, “with good results,” Dr. Timothy J. Babineau, president of Rhode Island Hospital, of which Hasbro is part., said in a statement. “The patient is in good condition and we do not anticipate any further complications related to this error,” he said.

The hospital apologized to the patient and the family. It also placed the surgeon and the surgical team on administrative leave after a preliminary investigation found that “at least one of our standard policies was not followed,” Babineau said.

Thankfully, medical negligence attorneys are holding doctors accountable for cases of medical negligence such as this.  If you have been unfortunate enough to have been a victim of a surgical error, such as wrong-site surgery, you should consider speaking with a medical negligence attorney about your rights.  Further, if you have an upcoming surgery, there are several steps that you can take to protect yourself:

  1. Ensure that your hospital follows the 2004 Universal Protocol issue by the Joint Commission, the national agency that accredits hospitals: (a) before you start to operate, verify that you are doing the right procedure on the correct part of the right patient;  (b) mark the site of surgery ahead of time; and (c) take a “time-out” right before surgery to make sure everything is in order.
  2. Ask that the surgical team frequently asks you questions requiring an active response, including name and procedure with site and/or side – especially prior to sedation.
  3. Ensure that two or more surgical team members are assigned to perform an independent verification and reconciliation of the schedule, consent, and history and physical.
  4. Ensure that the surgical staff is educated regarding the site of the surgery and ensure that the mark is visible when you are prepped, draped, positioned, and during the time out.
  5. Ensure that the site is marked unambiguously (with a skin marker, not a ballpoint pen) and in agreement with your understanding of the procedure.

The Pennsylvania Patient Safety Authority has much more information worth reviewing here.