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

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

Back in late 2005, a car prowler stole unencrypted computerized medical records of 365,000 Providence Health System patients from an employee’s car. We filed a case here in Portland on behalf of the 365,000 patients, and the trial judge granted Providence’s motion to dismiss the claim. We appealed and recently filed our opening brief with the Oregon Court of Appeals.

I co-authored the brief with my friend and colleague, Brian Campf. Here is a pdf version:

Providence Class Action: Patients’ Opening Brief Oregon Court of Appeals

Appeals move at their own pace. I don’t expect a decision from the Court of Appeals until 2009.

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

So this is an interesting piece on medical errors in Oregon. According to a summary on Oregon Live, 83 reported medical mistakes killed at least 24 people in Oregon hospitals in 2007. By all accounts, the numbers underreported. The numbers have increased since the 2006 report (65 cases reported).

The mistakes range from medication errors to wrong-site surgeries to objects left in patients during surgery. Of the reported errors, 30 resulted in serious injury, though “serious” is not defined.

Perhaps the biggest concern is the increase in numbers. While the numbers look low, the number of reported mistakes increased by 25 percent. Perhaps this means only that more are being reported. Still, you have to hope that we’re getting better at identifying and eliminating causes of preventable error.

The good news is that reporting systems can help increase patient safety, as long as they are properly used. Let’s hope that the reporting process starts to take the trend of cases downward.

David F. Sugerman

In the world of medical practice, there are different kinds of mistakes. Some are classified as those that never should happen. Like operating on the wrong leg or the wrong patient. Or transfusing with mismatching blood. Simple system controls should make these never-happen events the stuff of fiction.

So what happens when surgery gets done on the wrong leg or the wrong person. In the perfect world, it should be very simple. Those who made the mistake should apologize, cover the patient’s harms and losses, and improve their systems to make sure these things don’t recur. That’ s not too hard.

But that often doesn’t happen. In many cases, the hospital or physician goes so far as to bill for the mistaken procedure. Let me see if I’ve got this straight: A patient goes in for surgery on a right hernia, and the surgical team mistakenly opens the left side, checks it, finds it’s fine, and then opens and repairs the right. Tell me you’re not really going to bill for the mistake?!

Oddly enough, it happens way too often. Here’s a url of a recent summary of the issue: http://www.msnbc.msn.com/id/23341360/

Interestingly, the story talks about patients who describe themselves as non-litigous being outraged to the point of filing a claim when billed for these procedures. I know that the talk show commentators report otherwise and that politicians love to push the notion that everyone sues. Not so. From the trenches a simple truth emerges. Very few people want to revisit the mistakes that left them horribly injured, and even fewer want to go to court. But read their stories, especially if you think that the civil justice system is broken or that the courthouse doors should be locked tight against those with injury claims.

David F. Sugerman