Treating the Medical Hit-And-Run

The Huffington Post, June 17, 2009 

I wish President Obama could meet one or two of my clients who are victims of medical hit-and-runs. When the President tells the American Medical Association that he is open to curbing the rights of injured patients to sue in court, he shows that he just doesn't understand either what they go through or how important their lawsuits are to protect the safety of other patients.

Medical hit-and-runs happen when a patient is gravely injured or killed by preventable medical error, but then the doctors and nurses pretend nothing happened. This occurs every day across America. Most patients lack the wherewithal to tell the difference between preventable harm and the normal ""stuff happens"" consequences of the disease they started with. So a policy of denial can quell embarrassing questions, at least for a time.

But when families find the truth, sometimes by accident and sometimes by hiring a lawyer, the trust and confidence these families had reposed in their caregivers vanish in an instant. Medical injury compounded by betrayal carries its own peculiar kind of pain: searing and long-lasting.

Why do victims of medical hit-and-runs need the right to sue in court? Certainly, the money is part of it. Financial compensation in court sometimes is the only way to stave off bankruptcy when a serious injury has destroyed someone's ability to work and left the family with an unending stream of medical bills.

Lawsuits are part of the healing process from medical injury. When an injury has attacked someone's dignity and identity, the ability to haul the betrayers into court and demand accountability is a powerful tonic. Not so much for revenge, but out of the feeling, as so many of my clients tell me, ""I just don't want to see this happen to someone else.""

By exposing incompetence and flawed system structures, hit-and-run victims help contribute to safety reforms that protect everyone.

If medicine had a well-oiled safety system, maybe we wouldn't need lawsuits. The problem is not too many lawsuits, but too many people getting hurt and killed because medicine has barely begun to take seriously patient safety. A full decade into the 21st century, our medical industry denies that patients have any legitimate role in monitoring and enforcing the safety of their own care. A complex structure of confidentiality and ""privilege"" laws ensures that safety reviews are conducted in secret and never reported in any publicly accessible forum.

The statistics released by the system do not support the medical industry's claim that robust enforcement of patient safety is taking place behind closed doors. Hospital peer review is the latest example. New data from the Department of Health and Human Services show that 49 percent of U.S. hospitals have never reported a single sanction against any physician's privileges to the national data bank to which they are required by law to report. This despite the fact that the same law was written twenty years ago to block patients from ever finding out the contents of any individual report. Patients just cannot understand peer review reports, the medical industry successfully lobbied Congress.

As for medical licensing boards, most of the serious discipline involves low-hanging fruit like practitioners who abuse drugs or alcohol or molest their patients. A study of medical boards' responses to criminal convictions found that two-thirds of the doctors convicted of insurance fraud received only non-serious penalties. Serious discipline for patterns of negligent harm to patients is rare.

Meantime, the system-wide efforts to address the pandemic of medical error all rely on voluntary efforts and the good will of well-meaning medical executives. When greed or arrogance or just short-sighted cost-benefit calculation frustrates reform, patients have only one recourse to force attention to safety: file a lawsuit.

Does the threat of lawsuits cause doctors to order unnecessary tests and treatments? This ""defensive medicine"" argument from the medical lobby has been around for a while, and objective reviewers like the General Accountability Office have never found any solid proof that defensive medicine even exists. The proof that it doesn't comes from the ""reforms"" that some states have implemented to crack down on patients' lawsuits. Texas and California, for example, have eliminated nearly all malpractice lawsuits, yet aggressive, procedure-intense medicine thrives in both states, making them among the most expensive in the nation for medical care. What drives high costs in medicine is the fee-for-service payment system that rewards doctors who order the most care, not those who order the most thoughtful, most effective care.

Hurting patients by failing to follow basic safety rules can be undeniably expensive for medical providers - and it should be. Our broken system needs lawsuits to force accountability and to bring urgency to the safety message. And that can potentially save billions. If the President and Congress focused on safety first, instead of costs first, we could create health care reform that would help everybody.