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The flu vaccine shortage is shining a very bright spotlight on the weaknesses of our healthcare system. It also offers a reminder that some issues never disappear. This commentary appeared in a Coalition to Save Public Health newsletter in January 2003.

Tort Reform or Medical Reform

Medical Malpractice Protection for Whom?

By Michael Lyon

President George W. Bush is preparing his State of the Union speech, to be delivered January 28th. Along with defense of the Iraq invasion and not taxing corporate dividends, the speech will also call for an initiative capping medical malpractice awards.

Bush opened the current attack on medical malpractice suits in a highly publicized speech at a hospital in Scranton, Pa, last week, in which he blamed excessive awards and frivolous malpractice suits for increasing cost and decreasing accessibility of healthcare. Bush played to a receptive audience of administrators, since the hospital had recently been sued by the widow of a man who died following placement of a breathing tube in his esophagus rather than his windpipe, with the hospital not making the routine checks to insure correct placement. His medical records were then altered to hide the facts. Rather than apologize to the widow, Bush attacked malpractice suits. http://www.centerjd.org/press/release/030115.pdf

The issue is coming to a head now because malpractice insurance companies are raising their premiums at an alarming rate, particularly for obstetricians and neurosurgeons. Malpractice insurance companies are losing money, not because claims are increasing, but because their stock investments have gone bad. The increased premiums have driven some doctors out of practice, but for big sections of business and government this is not a problem, since they say there's an oversupply of docs anyway.

"Tort reform," severely capping medical malpractice suits, especially punitive awards, has long been a high priority for all of the medical establishment, from conservatives (Bush, the health insurance industry) to mid-roaders (the AMA) to liberals (the Institute of Medicine, Robert Wood Johnson Foundation). Is something wrong with malpractice suits?

Just on the face of it, one realizes that everyone, even good doctors, makes mistakes sometimes, and it seems unfair to sue on that basis. And it's also true that there are very bad doctors who are extremely difficult to get rid of, or even find out about, who are undeterred by malpractice suits.

But we need to look at a bigger picture. There are up to 98,000 deaths per year from medical mistakes. A large percentage of these mistakes are caused by hospital policy decisions such as speedup, understaffing, 100-hour work weeks for docs in training, too few beds, and use of under-trained workers in direct patient care or important behind-the-scenes tasks.

Other mistakes result from the fragmented structure of healthcare, such as the fragmentation of a patient's care between different institutions, or between health workers whose duties have been narrowed down to permit using cheaper workers, or between different private doctors who function largely as independent operators. Patient's information gets spread out over different locations, providers are too rushed for adequate charting, and hospitals under-staff medical records.

There are a multitude of reasons mistakes get made, but most of them are profit-driven, either by reducing costs, or by sending patients through a maze of different channels, each of which takes its cut. Given all this, it's hardly surprising that many mistakes occur. In fact, healthworkers catch some 98 percent of errors, often devising their own procedures, such as checking dose calculations with a co-worker. When errors do occur, most healthworkers are open to having them investigated to improve their practice and that of co-workers. These procedures and attitudes should be, and could be institutionalized, yet rather than fix healthcare to make it safe, the system exchanges money for lost health or lost lives. And now the president of the United States blames us for being greedy and litigious.

In case of bad outcomes where a mistake is involved, only one in eight cases even make it to court, and only one in sixteen get awards. Malpractice claims have not risen; if anything, they have decreased. Most important, malpractice claims account for only one half of one percent of health costs. In short, the healthcare system saves billions by tolerating dangerous conditions and absorbing relatively few malpractice claims rather than revamping the system to make it safe. http://www.centerjd.org/MediaGuide.pdf

Why then, if malpractice claims are such a small part of healthcare costs, is the medical industry and government so desperate to get "tort reform”?

I believe the reason "tort reform" is being pushed is not to limit lawsuits against the present levels of medical injuries and deaths.

I believe that in the future — because of rising health costs, reduced health benefits for workers, rising budget deficits, rising unemployment, the aging population, and continuing warfare — business and government plan huge health cuts, which would cause many more injuries and deaths. It is this flood of future malpractice suits that they want to protect themselves from.

Michael Lyon edits the newsletter of the Coalition to Save Public Health-San Francisco.