There’s an elephant in the room in the health care debate. We’re hearing a lot about high medical costs and uninsured people. And then there are the fake controversies over things like “death panels.” But what isn’t being discussed is the issue of patient safety. Instead, we’re hearing about national medical malpractice reforms and damage caps.

Here’s a link to a recent post I authored on PDXpersonalinjuryattorney.com, a blog devoted to Oregon injury issues. Here, also, is an amusing piece debunking some of the myths about tort reform being recycled by desparate politicians.

The thing that people miss is that an estimated 48,000-98,000 people die in America every year from preventable medical errors. As my buddy, Oregon trial lawyer Mark Bocci points out, it’s a bit like losing all the crew and passengers on a commercial jetliner every day.

Against this backdrop, caps and limits don’t make much sense. Let’s instead resolve to focus on patient safety. I can’t help but wonder what kind of conversation we would be having if everyday our civil aviation lost a plane.

David Sugerman

Nice write up online for the Willamette Week here about how liability insurance rates for Oregon physicians fell. The study from the State of Oregon Department of Consumer and Business Services dispels a major political myth.

While it’s hard to remember, Oregon voters rejected a cap on damages in medical malpractice cases several years ago. The initiative, Measure 35, was sold as necessary due to a crisis. Check out the linked power ponit to see how badly proponents of Measure 35 overstated their position.

Oregon voters saw through the rhetoric and chose the wise course. Today’s study simply confirms the wisdom of that choice.

It should be interesting to see whether this objective information stifles the recurring urge by some to put limits on damages. The absence of any crisis makes it pretty difficult to argue for caps on damages.

David Sugerman

What starts out as a blah-blah Wall Street Journal editorial supporting Illinois’ damages caps on medical error cases, turns ugly.

Look at what’s underneath, as the editors at the Journal are fairly frank about their goals:

“We’d prefer a ‘loser pays’ rule as in the British system. But without such a deterrent to frivolous suits, limiting damage awards is the only way to stop jackpot judgments that drive doctors away and hurt the quality of medical care.”

It’s a nasty bit of rhetoric for several reasons. First, there’s the urban myth of doctors driven away. There are no names, and there is no data. It’s just the bald “fact” that this happens. But the more unfortunate and intellectually dishonest piece is the “jackpot justice” rhetoric. The Journal editors know that they’re being disingenuous as a number of high-profile studies confirm that the system works fairly well, with one important flaw. Here’s a widely-publicized study from the New England Journal of Medicine on the topic of medical errors and litigation. Here’s another slightly-dated summary from AARP.

Here’s the bottom line from the New England Journal article: “Claims that lack evidence of error are not uncommon, but most are denied compensation. The vast majority of expenditures go toward litigation over errors and payment of them. The overhead costs of malpractice litigation are exorbitant.”

That overhead cost thing at the end is also important. What the Wall Street Journal wants to do is make litigation more expensive by importing from England the loser pays rule. What that means is that lawyers on both sides get paid by the loser.

Under the current system, most patients’ cases are handled on a contingent fee basis. That means that the lawyers get paid if and only if we make a recovery for the injured patient. That system does several things. First, it keeps open the courthouse to meritorious claims, regardless of the wealth of the patient. The patient that wins pays his or her lawyer based on a percentage of the recovery.

Under the contingent fee system, lawyers who represent patients simply can’t afford to take losing cases because when they lose, they don’t get paid.  As well, middle-income patients are able to locate and hire top-flight legal talent because they don’t have to pay by the hour for the lawyer’s work.

But the second thing is that I imagine that loser pays will drive up the costs to both sides. While I don’t have any data, the costs are apt to increase because both sides have an incentive to do more work and stick the loser with the bill.

Underneath, the Wall Street Journal wants us to believe that juries can’t be trusted, and our founders were wrong to set up a jury system. The Wall Street Journal apparently believes that legislatures that pass one-size-fits all rules are better suited than juries to determine case outcomes. [Snark alert:] I’m sure this has nothing to do with the fact that lobbyists roam through the various hearing rooms and halls of various legislatures but are barred from jury rooms.

In the end the editors of the Wall Street Journal sipmly ignore the reality of injured patients. I have to assume that they simply close their eyes because no one should be so jaundiced in the face of profound injury.

David Sugerman

This piece–including graphic pictures of burn victims–addresses the nightmare scenario of waking from surgery to find yourself in a burn unit with profound lifetime injuries.  Apparently, flash fires in surgery are more common than previously believed.

The problem illustrates the need for open courts in cases involving medical errors. If you have any doubt about the need for a healthy civil justice system, look at the faces of patients who suffered severe burns while undergoing surgery.

It’s only minor comfort to learn that it’s a rare catastrophe. But it also looks like fires in surgery can be prevented by controlling tools that spark the fire or adjusting the environment.  I wonder if this one is also on the list of “never errors” that our friends in the medical profession use in reviewing injury problems.

David Sugerman

In opening the beloved Tale of Two Cities, Dickens observed, “It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness….” He could have been talking about Oregon Health & Sciences University.  Here’s a glimpse of foolishness. OHSU’s  bonus program is alive and well, with payments to top executives of bonuses totaling some $1.7 million this year. That’s on top of the high six-figure salaries, and the valuable perks. And it’s happening amidst staff layoffs and clinic closings.

So what’s wrong with this picture? OHSU claims to be a publc corporation and claims to put the interests of Oregonians ahead of profit.  A few articulate Oregonians make a case otherwise, here.

The bigger piece is that OHSU is in the hole due to overbuilding and overspending. OHSU cried wolf recently when the Oregon Supreme Court ruled that the cap on damages could not be enforced in Jordaan Clark’s case.  OHSU went to an austerity budget, laying off hundreds and closing clinics. But the bonuses still flowed.

So here’s the score. OHSU causes profound injury to Jordaan Clark. When push comes to shove, the Oregon Supreme Court tells OHSU that it cannot rely on a horribly inadequate cap and that it will have to answer to the profoundly injured child. OHSU blames the child for its financial crisis but overlooks its own profligate spending in the South Waterfront debacle, the designer tram, and the losses of research dollars.  OHSU lays off care givers and closes clinics, laying the blame at the high cost of insurance.

Against this backdrop, we’re rewarding these people with bonuses. You’ve got to be kidding me.

David Sugerman

Good explanation in–of all places–Forbes on how caps on damages discriminate against retired and lower-earning individuals. Oregon legislators and voters are often asked to consider capping damages, and for that reason, this is a good read.

As the author explains, caps on damages typically limit non-economic damages.  Non-economic damages have been wrongfully labeled as “compensation for pain and suffering.” In fact, those damages address all forms of harms and losses bound up in the joys and pleasures inherent in life that can’t be measured by a simple paycheck or bill. So if you lose the loving relationship of your mother, that is a non-economic harm and loss. Same deal if you lose your ability to lift your child, taste food, see a sunset, or walk on the beach. Those profoud human joys are at the core of non-economic damages.

Caps often do not limit what are called economic damages, which address an injured person’s out-of-pocket losses. Miss a month of work because you got hit by a drunk driver and that loss of pay is an economic damage. So are the medical bills that you incurred.

So here’s the problem. Those who fare well in the legal system are only those who have large economic losses. If you lost 10 years of earnings from a doctor’s mistake or if you will need lifetime medical care, you will be able to recover full compensation. But if you were retired or under- or unemployed, you won’t. The capped claim system doles out justice based on wealth.  In that respect, it is fundamentally wrong.

David Sugerman

The medical profession has taken to calling them “never errors,” a label for errors–like surgery on the wrong leg or administering the wrong dose of medicine–that never should happen.  Unfortunately, these “never errors” are not new. Worse, they sometimes occur in clusters, like this one involving the family of actor Randy Quaid.  The good news is that more states are putting guidelines in place to discourage billing for “never errors.” (Sorry, I can’t lose the quotes…it’s just ludicrous that you label something that happens as “never.” But I digress.)

While the media trumpets the story as more states stopping the billing, it’s a bit of a misnomer to say that states prohibit such hospital billings. Instead, 23 states discourage it hospitals from billing for “never errors.” I suppose it’s progress, and maybe the medical profession is getting the message.

David Sugerman

Another news report on medical errors explains that the deadliest are those in which the provider fails to perceive that a hospitalized patient is developing problems and fails to intervene before things go from bad to deadly.

The jargon used is “failure to rescue” but I don’t think that label is accurate or helpful. Failure to rescue implies that a medical provider is actively sitting and refusing to do anything, knowing that a patient is in peril. The described problem is that the provider fails to perceive that problems are imminent and fails to intervene to stop the slide.

The study apparently logs 1.12 million safety problems out of some 40 million hospitalizations studied. The study found more than 238,000 preventable deaths over a three year period.

My gut tells me that in this era of rationed care and health care for profit, bottom line considerations lead to understaffed patient care. Rushed or overwhelmed medical providers have less time for patient care. Less time means less opportunity to observe the patient and notice changes or developing problems.

As a trial lawyer, you analyze these issues in terms of what a reasonably attentive medical provider should do and what a reasonable facility should provide by way of staffing. That includes having sufficient staff that allows the provider time to get a history, examine the patient, review the charts and note the problems.  Anything else promotes care that leaves patient survival to chance.

David Sugerman

I suppose it should come as no surprise, but a new study reveals much higher than expected medication error rates for hospitalized children. Prior to the study, the accepted medication error rate for hospitalized children was two out of 100. The study reveals that the rate is more than five times higher at 11 out of 100.

That translates to 7.3 percent of hospitalized kids. Projected out, we’re talking about 540,000 kids per year.

The issue has been under study for some time, but the findings are getting more publicity because of the Quaid twins incident. Medication errors are one of those never-should-happen malpractice events. These results really raise a red flag for those of us concerned with child safety. Let’s hope that our medical providers take these findings to heart, and that they develop new approaches to eliminate these preventable errors.

David Sugerman

Very articulate 60-Minutes interview of actor Dennis Quaid regarding his first-hand experience with preventable medical errors. The video is a bit long, but it is a compelling piece.

Quaid’s twin infant children both received the wrong dose of Heparin, a blood thinner, while hospitalized at Cedar Sinai Hospital in Los Angeles. There were actually two separate overdose incidents for each baby. In each instance, hospital staff gave the drug in doses a thousand times stronger that what is appropriate for an infant.

The description is graphic. Every parent’s worst nightmare. Mr. Quaid explains what those of us who handle these cases have known for a long time. Preventable medical errors commonly kill patients.

The problem is worse because patients are at the mercy of providers. When you’re driving your car, you can drive defensively. But when your child is hospitalized, all you can do is hope and pray that everyone is being attentive.

David F. Sugerman