Washington Personal Injury Blog - Medical Malpractice

How safe is an emergency room?

Don Jacobs — Fri, 10 Jul 2009 21:30:00 GMT

Every year medical errors kill over 98,000 people in the United States. Not injure, kill. That is an alarming number. I wonder how many are just seriously injured instead? Over a million lives have been lost in the past ten years because the U.S. health care system failed to adopt simple reforms recommended in 1999 by the Institute of Medicine. These reforms would have protected patients from deadly mistakes, according to the Consumers Union, publisher of Consumer Reports Magazine. Yet few medical centers implemented the reforms. A July 6th OP-Ed article in the New York Times recently talked about the losses of life in our health care system from failing to control infections or falls in hospitals. The article, written by Paul O’Neill, former Secretary of the Treasury under the Bush Administration, asked same probing questions about the new health care fix currently being pondered by Congress. Which of the reforms will eliminate infections in hospitals? Which will eliminate the 300 million annual medication errors? Eliminate the fractures from falls in the hospital or the cases of pneumonia caused by respirators? Mr. O’Neill’s article answered his own questions – none. He went on to state how the cost of caring for these medical mistakes runs in excess of one trillion dollars yearly. That’s one trillion with a “T”. He explains that fixing these errors, fortunately, isn’t brain surgery. Just enforcing simple procedures like washing your hands would eliminate many hospital caused infections. Low tech improvements like surgical checklists have been shown to drastically reduce surgical errors. Assiduous care and maintenance of central lines and urinary catheters would also drastically reduce infections. Yet hospitals and doctors are reluctant to change. Instead they want to stop patients from suing when they are needlessly injured or made worse because of preventable medical errors. Members of congress parrot the urban myth that defensive medicine is why health care keeps rising. Yet studies by the General Accounting Office and Consumer Reports show defensive medicine has little if any affect on the rising cost of care. Former Secretary O’Neill wants members of Congress to actually understand what’s really driving up health care costs. His idea is to have data assembled by congressional district on hospital-acquired infections, medication errors and other waste indicators. In his view, members of congress are more likely to push for the right sort of change when they realize people they know and represent are being hurt or killed by practices we know how to stop. Former Secretary O’Neill may be on to something. Unfortunately, big insurance and big medicine will spend millions of dollars to prevent any real change. Let’s hope they’re not successful.

Originally posted at InjuryBoard by Don Jacobs

The cost of health care and malpractice

Don Jacobs — Wed, 03 Jun 2009 18:11:01 GMT

As we debate how to fix the health care mess, one thing is clear. America’s health care is far and above the most expensive care in the world. The debate in the nation’s capitol has two goals. One is to get everybody covered by health insurance. The second is to try and get a handle on out of control health care costs. An interesting article about the mess appeared in the June issue of the New Yorker magazine. The article pointed out that the money we spend on doctors, hospitals and drugs consumes more than one of every six dollars we earn. The author noted the financial burden has not only bankrupt families and destroyed small business; it’s hurt our ability to compete on the global market. The article described the scene in McAllen Texas. It seems McAllen has some of the highest priced health care in the nation. In McAllen, Medicare spends over fifteen thousand dollars per enrollee. This amount is two times the national average. And it isn’t like McAllen is a wealthy area. The per capita income is only twelve thousand dollars. That means Medicare is spending three thousand dollars more per person in McAllen than the average person earns. So why are the costs of health care so high in McAllen? “It’s malpractice,” a family physician was quoted as saying. A cardiologist quoted in the article agreed. He said doctors order unnecessary tests just to protect themselves. But the author brought up the fact that several years ago, Texas passed a malpractice law that capped pain-and-suffering awards at two hundred and fifty thousand dollars. He asked if lawsuits went down afterwards. The cardiologist admitted the number of lawsuits went down to practically zero. Which is what lawyers and consumer groups were warning would occur should the law pass. No one can justify bringing a malpractice lawsuit. The cap is set so low that none of the serious injury cases are brought. And the cost of bringing a malpractice suit is so high the smaller cases never get pursued. The result? Now no doctor ever gets sued, no matter how egregious the mistake. And no victim ever receives compensation. The article quoted a general surgeon who heard the claim about malpractice driving up health care costs. His response? “Come on, we all know these arguments are bullshit. There is overutilization here, pure and simple.” Doctors, he said, were racking up medical costs with extra tests, services, and procedures. The surgeon had moved to McAllen in the mid-nineties, and since then, he said, “the way to practice medicine has changed completely. Before, it was about how to do a good job. Now it is about ‘How much will you benefit?’ ” Doctors seem to own a portion of the laboratories and hospitals in McAllen. The more tests they ordered and the more hospital admissions they prescribed the more money in their pocket. Then there are the physicians who see their practice as a way to make more and more money. They do things like instructing their secretary to have patients who call with follow-up questions schedule an appointment, because insurers don’t pay for phone calls, only office visits. They figure out ways to increase their high-margin work and decrease their low-margin work. The article quoted a local hospital executive who said he was approached by doctors demanding kickbacks for sending patients to his hospital. The requests were for over a hundred thousand dollars per year. One asked for five hundred thousand. After all, the more patients they see the more money the hospitals make. Competition for high paying procedures is stiff among hospitals. But one thing is puzzling. Why does the public still believe the high cost of health care is due to defensive medicine. This is one of those myths that doesn’t seem to go away. Consumer Reports magazine did an expose on this last year that came to the same conclusion. Defensive medicine is a myth. A myth used by people and entities to try and pass laws to benefit their bottom line. But it is an enduring myth. One that will probably hang around forever because consumers have been brainwashed by hearing it so many times.

Originally posted at InjuryBoard by Don Jacobs

Malpractice rates drop in Oregon

Don Jacobs — Wed, 06 May 2009 17:35:00 GMT

Oregon public broadcasting recently announced that medical malpractice insurance rates are dropping in Oregon. Based upon statistics from the Oregon Department of Consumer and Business Services, rates have dropped more than 18 percent over the last four years. Lisa Morawski of the Department issued a statement that said rates drop when claims go down. Apparently the phenomenon is not just happening in Oregon. Washington has also seen a double digit decline in rates, as well as a decrease in the number of lawsuits. Consumer advocates credit the decline with improvements in patient care, such as computerized medical records. And for those thinking it must just be a west coast thing, states across the country are seeing similar drops. Iowa has seen big dips in rates for physicians and hospitals. Iowa Insurance Commissioner Sue Voss said that Midwest Medical Insurance Company (MMCI) is reducing physician base rates by 9.6% for 2008. MMCI is a Minneapolis based physician-owned insurance company and the largest writer of medical malpractice insurance in Iowa. So too in Pennsylvania. Governor Rendell cited new statistics recently that show a 41 percent decline in medical malpractice lawsuits statewide since early in the decade. Gov. Rendell said recently that efforts to address Pennsylvania's malpractice insurance crisis had curbed the rise in premiums for doctors and given patients better access to care. And it wasn’t because the legislature or the voters decided to cap damages for victims or make it more difficult to hire an attorney. Changes were made to Pennsylvania’s medical malpractice laws, such as requiring a certificate of merit from another doctor to show a case was valid before filing suit, among others. Mark Phenicie, legislative counsel for the Pennsylvania Association for Justice, which represents trial lawyers, said his members were satisfied with the changes because there were no longer calls for caps on damages – something that some lawmakers had called for to rein in awards. "The report shows with absolutely no spin that medical malpractice is certainly stabilized," Phenicie said. "But the most egregious cases can still be tried or settled." So what happened in Oregon and Washington? Why are claims dropping in the northwest, as they have been doing for a number of years? A better question is why are so many still clinging to the myth that there's a malpractice crisis driving doctors out of state and we need to pass more laws making it difficult for victims to recover. But myths don't go away easily. And the companies who would benefit from tort reform laws don't seem to be making any announcements that their ideas are no longer needed.

Originally posted at InjuryBoard by Don Jacobs

Fixing the health care mess

Don Jacobs — Fri, 10 Apr 2009 19:03:39 GMT

As the nation sets out on the path to change the health care system, the usual players at the table are demanding we change medical malpractice laws as part of the fix. The same tired ideas discredited years ago as not being a solution to anything are being revived again. Capping what an injured patient can recover, limiting what they can pay their attorney or creating more roadblocks to go through to recover compensation are some of the “new ideas” being proposed. For decades we’ve been told rising malpractice insurance rates are a direct result of too many lawsuits. But malpractice rates are now declining in Oregon and Washington. Yet neither of these states passed any malpractice reforms. So have the number of lawsuits fallen off? Or have doctors fled the northwest to other states that passed reforms, thus lessening the number of doctors available to be sued? Hardly. Neither state has seen any significant change in physician numbers. But what about all those news articles claiming doctors were fleeing your state? It turns out it was just a media campaign. Run by people who have a lot to gain by convincing you the malpractice system was out of control. One that was pretty illogical too since it was run in just about every state, making you wonder where they were fleeing. Canada? But what about the effect on health care costs? Isn’t the ever increasing cost of health care caused by all those frivolous law suits? An interesting article in the March Canadian Medical Journal contained the following quote, “After years of warnings from former United States president George Bush that frivolous medical malpractice lawsuits were driving doctors out of practice and inflating the cost of US health care, the weight of evidence now points to preventable errors - not misguided lawsuits - as the real source of the concerns." It appears shoddy quality control still plagues medicine. "American health care operates with levels of unreliability, injury, waste and just plain poor service that long ago became unacceptable in many other industries," according to Dr. Donald Berwick, a Harvard pediatrician and a crusader for fixing poor care. At least a hundred thousand people die every year because of preventable medical mistakes. Some sources estimate this amounts to over $500 billion a year in avoidable medical costs. If true, this figure is close to 30% of all health care spending in America. Curing this problem in our medical system would go a long way towards reducing health care costs. And simple solutions appear to be the biggest cost savers. Surgical checklists are one example. So doctors know before and after a procedure that all required tasks have been completed. So is computerization of medical records, so doctors can quickly see and be able to actually read what prescriptions other doctors have given to a patient. Let’s hope the fix to the health care involves reforms to the health care system, not the court system. Otherwise we all end up with less rights and the same health care system.

Originally posted at InjuryBoard by Don Jacobs

Oregon legislature set to increase Oregon cap on lawsuit damages

Don Jacobs — Fri, 27 Feb 2009 14:00:01 GMT

The Oregonian newspaper recently reported a compromise concerning a recent Supreme Court holding striking down an outdated Oregon law limiting damages for any damage caused by a public agency to $200,000, no matter what the actual loss. Commonly called the Tort Claims Act, the law limited what someone could recover if their property was damaged, or if they were injured or killed by an act of negligence committed by any public agency. The law affected individuals, small businesses and even large private corporations. From the little guy having his delivery truck run off the road by a county vehicle to the owner of a large container ship having his vessel sunk at the Port of Portland. The most they could recover was $200,000, irrespective of what it cost to repair or replace the damaged property. The law also capped damages for injury claims. An accident caused by Tri Met put you in the hospital? Your medical bills over $300,000? Too bad. You can only recover the maximum $200,000. The rest you have to pay for, whether or not you have medical insurance. The law has been in place for decades and was long overdue for a change. Part of the problem was that no yearly cost of living adjustment (COLA) was put into the law when first enacted. Why state legislatures continue to pass laws setting certain dollar amounts for items without including a COLA still amazes many. It doesn’t take long for inflation to eat away at what the law was initially meant to accomplish. What things cost back in the 1970s has little relevance to the cost of items in 2009. Medical care is a prime example. The cost of care has risen more than the rate of inflation every year since 1980. Everyday consumer goods, services and big ticket items like homes and automobiles cost many times more than what they did four decades ago as well. Which was part of the reason the Oregon Supreme Court ruled a law limiting your right to be reimbursed for damage caused by a public agency unconstitutional. The case in question was Clark v. OHSU. A tragic story involving a young child at OHSU hospital in Portland. He was horribly injured when someone carelessly shut off his oxygen, causing permanent and irreversible brain damage. Initial estimates showed his parents would be saddled with medical bills alone of almost eleven million dollars to care for their son. Limiting his parent’s right to recover only $200,000 based upon this old law would have been a major injustice. So the state legislature in Salem is considering increasing the dollar limits on claims against public agencies like OHSU to 1.5 million. Maybe not enough to cover what happened to the family in the Clark case, but a significant increase over the old amount. And the other good news? A COLA will be attached to the bill.

Originally posted at InjuryBoard by Don Jacobs

Surgical checklist shown to reduce hospital deaths

Don Jacobs — Sat, 17 Jan 2009 17:47:00 GMT

An interesting article in the Oregonian newspaper Thursday morning discussed a study concerning the use of simple surgical checklists. The study was conducted by the World Health Organization and used hospitals in eight different nations. Hospitals in cities from Seattle to Manila to London were used. Surgical teams were all required to go through a checklist before starting any operation. Once they did, an amazing thing happened. Deaths and serious complications from the surgeries dropped off dramatically. The checklists were fairly simple, listing basic steps that should be taken before any surgery. Things like making sure they had the right patient and the right body part. Making sure the surgical tools were sterilized and discussing what problems might come up. After the surgery but before the patient leaves the operating room the team returns to the list, checking off items like making sure all equipment was removed from the patient. Checklists have been used by airplane pilots for decades. Before they start an engine or take any steps to get up in the air, they go through a written checklist making sure the basic things on the plane are working and ready to go. Why doctors and hospitals haven’t been using this low tech inexpensive tool before is a mystery. The article detailed how doing so would save an estimated 15 billion per year in medical costs to repair the damage done from preventable medical errors. That’s 15 billion with a “B”. And what about the cost savings gained by not having to pay damages to people they injure from preventable medical malpractice. Malpractice that a simple checklist would have prevented. The article stated the study found patient deaths after surgery declined by 40% after using the checklist. A 40% reduction in deaths. Let me repeat that, a 40% reduction in deaths. Anytime you can prevent one death a strong argument can be made to implement a new procedure, especially one that costs next to nothing and is simple to do. So what is the better suggestion, passing laws making it harder for consumers to sue doctors and hospitals when they are killed or injured by preventable medical error? How about using this simple tool instead so you prevent the deaths and injuries in the first place? Sounds like a no brainer, particularly if you can save 15 billion a year.

Originally posted at InjuryBoard by Don Jacobs

Professional malpractice

Don Jacobs — Tue, 01 Jul 2008 20:03:00 GMT

Lawyers, like doctors, architects, accountants or any other professional, are responsible for the damage created when they make an error. Often referred to as professional malpractice, these errors may give anyone harmed by the malpractice certain rights of recovery. In order to prove malpractice occurred, a consumer of professional services must be able to show that the professional services they received fell below a certain minimum standard of care. The law creates a standard of care for all of us in many activities of daily life. The standard for all of us is often referred to as the standard set by the ordinary reasonable person. What would the ordinary reasonable person do in any given situation? If we take some action that this fictitious person probably wouldn’t have taken, we may become responsible if someone is harmed as a result. As an example, we each drive upon the highway. When we do so, we have to adhere to a certain standard of care set by the ordinary careful motorist. If we take an action behind the wheel that no ordinary careful motorist would take, we become responsible for any damage created. The same rule applies to professionals. It’s just that their standard of care is higher as they are no longer ordinary persons. They hold themselves out to the public as having special expertise the ordinary human does not possess. As a result, they have to adhere to a higher standard of care. Their standard is one set by the ordinary careful professional in a given situation. If the ordinary careful professional would not have acted the way they did under a certain set of facts, they are said to have violated the standard of care. Not all violations of the standard of care are compensable. The violation must be the cause of some damage to the client or patient. Bad outcomes alone are not considered compensable malpractice. On many occasions, a doctor or lawyer can perform admirably, but end up with a bad outcome. The bad outcome that occurred may have been a known and accepted risk inherent in the services provided. As an example of professional malpractice, a lawyer may neglect to adequately work up a case for trial or may fail to hire the proper experts or line up the appropriate witnesses. If the case is lost, or if the client is forced into a small settlement as a result, they may be entitled to damages.

Originally posted at InjuryBoard by Don Jacobs

Hospitals say they’re sorry and lawsuits drop

Don Jacobs — Fri, 30 May 2008 12:38:00 GMT

A May 18^th article in the New York Times described a new program at several prominent hospitals across the nation. When a medical mistake was made, the doctor met with the patient and explained what happened. An apology was offered. Then the hospital offered to pay for the damage. In other words, the doctor and hospital did what is known as “doing the right thing”. Taking responsibility when you make a mistake and offering to pay for the damage is pretty basic ethical behavior. The only reason ever to turn to the court system is for those times when people refuse to take responsibility for their actions. For years the strategy of doctors and hospitals has been just the opposite. Instead of telling a patient what happened and taking full responsibility, medical errors were hidden. If a patient found out anyway, the strategy switched to deny and defend. Top legal defense teams found experts to deny any error happened and did whatever they could to attack and discredit the patient. So what happened when the doctors and hospitals decided to do the right thing? Lawsuits dropped off sharply. Less money was paid out in legal claims. Patients weren’t angry. By promptly telling a patient about a mistake, offering a real apology and fair compensation, the goal was to restore some integrity to the patient relationship, making it easier to avoid the error in the future and prevent angry patients that might be tempted to sue. Lawyers have known for many years that what makes people bring lawsuits isn’t always that a mistake was made, it’s the hiding of the error and the patient’s fear it will happen to somebody else if they don’t do something. When the program was started at the University of Michigan Hospital, doctors feared a flood of new lawsuits. Instead, they reported a decrease in suits, savings in legal costs and lower malpractice premiums. Richard Boothman, the hospital’s chief risk officer was quoted as saying “Improving patient safety and patient communication is more likely to cure the malpractice crisis than defensiveness and denial.” Imagine that.

Originally posted at InjuryBoard by Don Jacobs

Medicine mix-ups hurt many children

Don Jacobs — Sun, 13 Apr 2008 15:43:00 GMT

The above headline highlighted an article in the Vancouver Washington paper this week. The article went on to say 1 in 15 children admitted to hospitals were harmed by drug mix-ups or accidental overdoses. Readers may recall the nightmare actor Dennis Quaid and his wife went through last November. His newborn twins were negligently given a large overdose of the blood thinner heparin. The overdose was life threatening. Fortunately the twins survived, but the actor called it “the most frightening time of my life”. His advice to any parent with a child in the hospital? “Every time a caregiver comes into the room, I would check and ask the nurse what they are giving them and why,” Quaid said. The 1 in 15 children harmed figure came from the first scientific test of a new detection method. The number of mistakes found was much higher than people in the industry predicted. A doctor from the National Initiative for Children’s Healthcare Quality, who helped put together the detection tool used to conduct the study was quoted as saying, “These data and the Dennis Quaid episode are telling us that … these kinds of errors and experiencing harm as a result of your health care is much more common than people believe. It’s very concerning”. Very concerning is an understatement. When you have a one in fifteen chance of your child being injured as a result of hospital negligence just from medicine mix-ups or overdoses, it’s more than concerning. It’s frightening. When you take your child to a hospital you have to trust they know what they’re doing and will take care of your child. You have to believe your son or daughter will be safe there and get help for whatever ails them. With the outcome of this study, that trust appears misplaced.

Originally posted at InjuryBoard by Don Jacobs

Doctors Let Skills Slide

Glenn Phillips — Tue, 04 Dec 2007 10:12:02 GMT

While most of the doctors agreed they needed to keep up with changes in the profession and have their competence reviewed, only 31 percent had undergone a competency review in the past three years. Dr. James Thompson, chief executive officer of the Federation of State Medical Boards, said one problem may be that doctors know there is not much that can be done to help doctors who are struggling to be competent.

"There are restrictions on state medical boards that inhibit their ability to go after physicians aggressively," Thompson said. Medical Boards cannot act unless someone reports a problem doctor.

For more information on this subject, please refer to the section on Medical Malpractice and Negligent Care.

Originally posted at InjuryBoard by Glenn Phillips