If you spend an hour reading this report, chances are that five to 11 Americans will die from preventable medical errors by the time you finish. Chances also are better than 50-50 that not a single malpractice payment will be made, or medical malpractice litigations pursued, as a result of any of these avoidable deaths. Policy makers intent on reducing the legal liability of our health care system should address the crisis that experts acknowledge the shocking prevalence of medical errors instead of falling prey to the special interests’ fiction that lawsuits are at the root of the problem. So begins and ends the July 1, 2009, report by Public Citizen titled The 0.6 Percent Bogeyman debunking the myths concerning the so-called medical malpractice crisis.
According to the report, the problem isn’t that too much is being paid out in medical malpractice claims; its that too many victims of malpractice are not aware that their situation merits a malpractice claim. This finding is consistent with a 1984 New York study (Harvard Medical Practice Study in New York) in which nurses and doctors evaluated records of patients injured in hospitals found that one in 25 patients suffered injuries and that about one in four of these injuries were caused by malpractice. Thus, 27,000 New York patients suffered injuries due to malpractice in 1984. Only 3,800 medical malpractice claims were filed in New York that year.
- Myth 1: Medical malpractice litigations share of overall health care costs is crippling the system.
Fact: Medical malpractice litigations share always has been minuscule, has fallen to the lowest level on record – less than 0.18 percent of all health costs. Even if one includes in the calculation the cost of all medical malpractice insurance premiums paid by doctors and hospitals, which premiums cover not only malpractice settlements, verdicts and the cost of litigation, but also insurance companies overhead and profits, the share is just 0.58 percent of all health costs.
- Myth 2: There is a significant increase in number of malpractice payments being paid.
Fact:The number of malpractice payments in 2008 was the lowest since the creation of the federal governments National Practitioner Data Bank, which has tracked medical malpractice payments since 1990. Last year was the third consecutive year in which the number of medical malpractice payments sunk to an alltime low.
- Myth 3: The cumulative value of malpractice payments is skyrocketing.
Fact: The cumulative value of malpractice payments (as distinct from the number of payments) in 2008 was either the lowest or second-lowest on record, depending on how one adjusts for inflation. Perhaps the only measure by which medical malpractice payments have increased over the life of the National Practitioner Data Bank is in the average, or mean, amount per payment.
- Myth 4: Replacing the jury system with special tribunals would save the health care system money and would compensate more patients who suffered adverse events in the course of care.
Fact: Data from Harvard’s Colorado-Utah Medical Practice Study were used to analyze the prospective costs of establishing special tribunals that would theoretically compensate more patients who suffered adverse events in the course of care but would limit the amount of compensation received by each. This analysis showed that a no-fault compensation system (compensating patients who suffer adverse events regardless of whether they are preventable) would cost more than four times as much as the tort system. To keep costs equal to the tort system, researchers found that such a tribunal system could only compensate about one-third of patients injured by avoidable medical errors, and would have to limit compensation to no more than $100,000 for noneconomic damages and no more than a two-thirds replacement of lost wages.
Most Injuries for Which Patients Receive Compensation Are Extremely Serious Nearly two-thirds (65 percent) of medical malpractice payments in 2008 compensated for negligence resulting in significant permanent injury, major permanent injury, quadriplegia, brain damage or the need for lifelong care, or death.
More than four-fifths (83 percent) of the total value of malpractice payments last year compensated for these catastrophic consequences. The four most serious categories posted the highest mean and median payments by significant margins. Insignificant injury and emotional injury only, the two ostensibly least serious injuries, accounted for between 0.2 percent and 0.3 percent of dollars paid in 2008.
Public Citizens report also makes reference to “never events” and to statistics of The Joint Commission, a nonprofit institution that accredits hospitals and other health care service providers, and reports on serious adverse events that it learns about. The Joint Commission reported learning about 116 wrong-site surgeries in 2008 and 71 instances in which foreign objects were left in the bodies of patients. These and several other sentinel events on which the Joint Commission reported are deemed never events by Medicare because they simply should not happen.
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