In the June 1, 2007 issue of Reader's Digest, Night Shift Nightmare discusses the well known phenomenon that more hospital medical malpractice occurs over night and on the weekends.  From the article:

There are many reasons to feel anxious when entering a hospital. In April, a HealthGrades study showed that some 248,000 patient deaths over a three-year period were preventable. What's less widely known, at least to the general public, is that mistakes tend to multiply on the night shift. You won't find it in any hospital brochure, but within the medical world, the dangers after dark are well known.

And the article notes that no one is immune from problems:

"To succeed, they have to know what the other people on the team are doing, and how to communicate," says Dr. Carol Ley, chairman of the University of Minnesota Medical Center's board and director of occupational medicine at 3M Company. Dr. Ley has firsthand experience with medical error: Her seven-year-old daughter, Jacquelyn, could have died after a morphine pump was mistakenly set too high. It happened during the night shift, following surgery for a shattered elbow; fortunately, Dr. Ley, spending the night in her daughter's room, noticed Jacquelyn was barely breathing. She puts it bluntly: "The night shift, with its hand-offs and staffing issues, is prime time for medical error."

The stories and studies cited in the article are frightening.  Fortunately, the article states that the medical community, in particular medical schools, are taking notice.   Many schools are developing computer models to help properly allocate nurses and staff; many schools are trying to foster a bigger sense of teamwork between different levels of staff and between different shifts; many schools are hospitals are starting to train staff to better handle crises.

Of particular interest to us was that one of the case studies in the article was from a Texas hospital (though not one from Austin).

Last night, Austin's Fox 7 news ran a story that detailed allegations of medical malpractice involving the care received by a patient in an Austin-area nursing home.  The story said that after the patient's death, state investigators came in and found that the nursing home violated several state regulations and that those violations contributed to the death.

At the end of the story, the family stated that they were investigating their legal options.  Unfortunately, this story is a prime example of the tragedy of tort reform.  

There are two types of damages that may be recovered in a wrongful death suit.  Economic damages are those hard expenses that can be calculated, including lost wages, cost of medical care, and amounts for out-of-pocket expenses.  The other category, non-economic damages, includes elements such as pain and mental anguish and impairment.

The family's story is typical of most death cases involving the elderly or children since there are  minimal economic damages, if any.  The elderly and the children do not have jobs and thus no claim for lost wages, and in most death cases, the patient quickly dies and there are no significant medical expenses.  That means that the family in the story is likely limited to recovery of their non-economic damages.

But with the tort reform of the last few legislative sessions, non-economic damages in most medical malpractice cases are limited by a damage cap of $250,000.00.  That cap is going to make it difficult for the family to find a competent attorney to represent them in any lawsuit.  While $250,000.00 may sound like a lot, that limit makes it almost economically impossible to pursue the claim.

Most attorneys handle medical malpractice claims on a 40% contingency fee (the attorney receives 40% of any recovery).  If the recovery is capped at $250,000.00, then the fee is capped at $100,000.00.  Unfortunately, the cost of litigation, including very expensive expert witness fees, can approach or exceed $100,000.00.  Attorneys usually pay for these costs and hope to get reimbursed by the client when they prevail.  That means the attorney is risking $100,000.00 of his own money for out of pocket expenses to pursue the claim on the hope of earning a fee of $100,000.00.  Very few competent attorneys will agree to such an agreement.

And the cases also do not make much economic sense to the victims' families.  With a $250,000.00 recovery, attorneys' fees of $100,000.00 and expenses of $100,000.00, the families are left with $50,000.00 to be shared amongst the beneficiaries.  Certainly not a huge windfall to compensate victims for the loss of a loved one.

And that's one of the fallacies of the tort reform cap on damages.  The damage cap hurts those, like the family in the story, who have valid claims, but doesn't do anything about frivolous lawsuits. 

We hope the family in the story can find a reputable attorney to represent them in what sounds like very offensive conduct, but we're afraid that they'll be like so many victims in the last few years and not be able to find reputable counsel to represent them in their claims. 

During tort "reform" battles, reformists repeatedly assert that medical malpractice lawsuits force doctors to practice "defensive medicine" that unnecessarily drives up the cost of health care. Stephanie Mencimer rebuts this contention in her blog. Particularly interesting to those of us in Austin and Texas is that she relies in part on an article from the Austin American Statesman to prove her point. Her post is also briefly discussed by our friends over at TexasWatch.

One problem with the assertion that doctors practice defensive medicine is that it's hard to prove.  Most, if not all, doctors claim that they probably ordered some test or another that they would not have because they were worried about liability.  But is it really defensive medicine? The tort reform literature has very little to say about the times when the extra test diagnoses a disease or condition.  If the tests or procedures actually catch a problem then it's just termed treatment.  And what part of the problem is caused by patients.  Understandably, patients often want to know with as much certainty as possible about their condition; and patient requests for tests and procedures or medication will only increase as more information, whether good or bad, is available on the internet. 

Another blog post from earlier last year that discusses the effect (or lack thereof) of defensive medicine is here.

Dallas attorney John Browning, who represents doctors and hospitals in medical malpractice cases, wrote an insightful opinion piece in his local paper earlier this week.  His article, Is The Sky Really Falling?, addresses the alleged medical malpractice crises.

Mr. Browning’s piece includes this conclusion:

If President Bush had listened to Mrs. Thornton’s tragic tale, he would realize that the system is neither broken nor overburdened by frivolous lawsuits; that medical negligence occurs more often than we’d care to admit; and that only a relatively small percentage of cases go all the way to trial and result in a plaintiff’s verdict. I’d also like to think there are ways to address concerns over medical malpractice other than restricting an individual’s right to go to court; such as requiring doctors and hospitals to report errors to a national, federally-supervised database (there is already a National Practition-ers Data Bank that tracks settlements, judgments, and disciplinary actions).

Saying that the sky is falling doesn’t give a complete picture of the medical malpractice issue, and it doesn’t address the most important aspect of all - the safety of patients.

 

 

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