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?
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.
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
"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
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
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.
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.