MORTON KONDRACKE    ROLL CALL
Medical malpractice suits and errors

February 22, 2005

Once again this year, it looks as though Congress will fail
to pass medical malpractice reform - or do very much about
its twin problem, the medical errors that kill or hurt
thousands of people every year.

As has happened in the past, the House is likely to approve
caps on non-economic damages ("pain and suffering") in mal-
practice litigation, but the legislation will be stymied in
the Senate. That body did just pass a major item on the GOP/
business tort reform agenda - limits on class-action lawsuits
- but knowledgeable lobbyists say that the trial lawyer lobby
retains enough power among both Democrats and Republicans to
kill medical malpractice reform, despite President Bush's
urgent campaigning.

Bush speaks frequently about the need to control "frivolous
lawsuits" and surging malpractice insurance premiums that
are blamed for driving emergency room doctors, obstetricians
and neurosurgeons out of business. Malpractice reform -
principally, a $250,000 cap on non-economic damages - is a
key item on Bush's agenda for containing double-digit
increases in health care costs.

An administration study showed that about $28 billion is
spent each year on the combination of malpractice litigation
and the "defensive medicine" that doctors and hospitals
perform, including extra tests and unnecessary procedures,
to protect themselves against lawsuits.  Opponents point out
that while this is a huge sum, it still represents only a
sliver of the nation's $2 trillion annual health bill.

But a new study by the Joint Commission on the Accreditation
of Healthcare Organizations suggests there are other down-
sides to the current malpractice system. Among other things,
the commission says, "the stifling specter of litigation
results in the under-reporting of adverse events by
physicians and avoidance of open communications with
patients about error."

In a landmark 1999 study, the National Academy of Science's
Institute of Medicine reported that 44,000 to 98,000
Americans die every year because of preventable medical
errors.

That report has led to heightened consciousness about quality
control in health care, outcomes-based medicine and the need
for medical records to be computerized. However, as one of
the authors of the Institute of Medicine study, Lucian Leape
of Harvard University, recently told correspondent Susan
Dentzer on PBS' "NewsHour with Jim Lehrer," the report
"called for a national commitment, a moonshot, a serious
effort to reduce medical errors."

"We said we could reduce medical errors by 50 percent in
five years if we had that kind of national commitment."
But it has yet to happen. Leape said, "There's been a bill
before Congress every year for the past four years to
provide protection, and we just don't seem to be able to
get it passed."

Dentzer's segment on PBS addressed extensive efforts at VA
hospitals to avoid errors, including "wrong site" surgeries.
The VA official in charge of quality told her that 44 percent
of incorrect surgeries involved operations on the wrong side
of the body, and 36 percent were on the wrong patient.

This is not only a problem for the VA. One California expert
told Dentzer, "Everybody - every doctor, every nurse, every
hospital - knows we have a terrible problem and they are
really desperate. Just think, if a jumbo jet were crashing
every day what we would be doing about the problem." If
medical errors kill 98,000 Americans a year, that's about
270 people a day - roughly the number aboard a Boeing 747.

Medical errors are the reason that patients or their families
sue doctors and hospitals, but the accreditation commission
report noted that several studies have shown that litigation
is an ineffective means of dealing with the problem. One
Harvard study found that only 2 percent of negligent injuries
resulted in successful claims against providers and only 17
percent of claims appeared to involve negligent injury.

Experience from the states indicates that the kind of caps
Bush proposes on jury awards do result in fewer lawsuits
being filed and reduced medical insurance premiums.

But the study found that "an unintended consequence of the
tort system is that it inspires suppression of the very
information necessary to build safer systems of health
care delivery."

Democrats, even though they are closely tied politically to
the trial lawyer lobby, have suggested some compromises on
the medical malpractice front that medical groups and
Republicans should consider.

Both sides should consider a higher cap than $250,000 on
non-economic damages if that will produce an agreement.
Last year, it was not enough.

But even beyond seeking bipartisanship on controlling law-
suits, it's long past time for a major effort to stop medical
errors. There are better, easier and cheaper ways than
litigation to prevent removal of the wrong limb or breast.
Congress ought to foster them.