By Joanne Doroshow, Center for Justice and Democracy at New York Law School
If 20 jetliners began crashing weekly, said a safety expert recently, "There would be a national ground stop. Fleets would be grounded. Airports would close. There would be a presidential commission. The NTSB would investigate. No one would fly until we had solved the problems." You're probably now thinking, "What kind of crazy hypothetical is that?"
It comes from none other than Capt. Chesley "Sully" Sullenberger, the "Miracle on the Hudson" hero pilot who safely landed his plane on the Hudson River in 2009. But Sully wasn't talking about some sort of zombie apocalypse airplane nightmare. Rather, he was drawing an analogy to something far more real -- the carnage happening today, just around the corner at your local hospital.
The latest statistics show that medical errors, most of which are preventable, are the third leading cause of death in America. The cost of injuries to families and to the health care system is likely near $1 trillion dollars annually. This intolerable situation is perhaps all the more shocking because we already know about how to fix much of this. For example, when the labor and delivery unit at NY Presbyterian Hospital-Weill Cornell Medical Center implemented a comprehensive obstetric patient safety program, not only were catastrophic errors dramatically reduced but also compensation payments fell by 99.1 percent.
Lack of patient safety knowledge isn't the problem. Yet rarely do our laws focus on implementing what we already know. For the past 30 years, policy proposals in the area of medical malpractice have concentrated almost entirely on the "doctor as victim" narrative. The insurance and medical lobbies have effectively turned the malpractice issue on its head, so that policymakers treat medical malpractice primarily as if doctors and their insurers were the victims of it, instead of the hundreds of thousand of patients who wind up dead or injured each year. This is well-reflected in the number of medical malpractice laws that have passed around the country, virtually all of which are designed to weaken the liability and accountability of health care providers. No wonder medical errors continue at epidemic levels.
In 2010, in response to organized medicine's push for additional liability limits in the Affordable Care Act, the Obama administration allocated $23 million to examine patient safety initiatives in the hopes of reducing liability costs. While it seemed like a waste to spend another $23 million to explore many issues we already understood, we thought it couldn't hurt. But then we read several articles in this month's Health Affairs. This issue summarizes some early results of this multi-million dollar expenditure and "six pioneering programs," which are aimed at keeping cases out of the court system through early offer and settlement programs now existing in a few medical systems.
Early offer and settlement programs, euphemistically called the "communication-and-resolution approach," basically allow hospitals to approach patients injured by negligence, tell them what happened (since hospitals rarely do that), perhaps apologize and offer them money. Sounds good on paper, but imagine the weakened parents of a severely brain-injured newborn, with absolutely no idea what funds will be needed to provide around-the-clock care for this child's lifetime. Then imagine those parents being offered sympathy and a settlement by a hospital risk manager who does not disclose his sole obligation -- to keep hospital costs low. Ethically, this kind of thing should not even be allowed. And as other experts have said about these programs:
The literature never makes clear what percentage of patients are ignorant about what they are giving up when they take a partial payment instead of full compensation. The programs leave open the possibility of short-changing patients ... The literature also never considers the long-term effect of this partial compensation on the patient and society as a whole.
But putting aside for a moment the critical issues of fair compensation and ethics, let's turn to patient safety, which proponents of "early offer" programs tout as a major benefit. Proponents of these programs say that when errors are disclosed, hospitals will act to correct things. Again, sounds good on paper but what do we really know? Not a great deal from this issue of Health Affairs, that's for sure.
To begin, the authors of one of the articles, in defining their "limitations," warn against expecting any kind of honest assessment. They write:
We did not independently ascertain the programs' success in improving key outcomes. Our sample disproportionately comprised program administrators, who -- although highly knowledgeable -- might have subconsciously amplified their program's success.
Subconscious? The question is why people with clear conflicts of interest were asked to evaluate their own programs in the first place? That would be like asking Chris Christie's office to do a traffic assessment of the GW bridge toll lane closures.
Moving on, even the program administrators themselves knew little about the patient safety results of their programs. The authors state: "[R]ates of adverse events had decreased." No actual evidence is provided to show this save a few footnotes mentioning earlier articles co-authored by, among others, the program proponents. Then, the authors penned this cryptic statement: "[I]nterviewees at all of the programs also recognized that there was still much room for improvement in making full use of lessons learned for improving patient safety." A ringing patient safety endorsement, this is not.
But then, things become really troubling. The program proponents admit throughout these articles how difficult it is to have physicians "buy in" to them because physicians -- no matter how much their liability and victim compensation is reduced -- still have pervasive "concerns about the spread of negative information about themselves." To appease them, the authors suggest a fairly breathtaking idea: to deliberately structure "early offer" programs in such a way as to "avoid NPDB reporting," undermining one of our nation's most important patient safety advancements. The NPDB, or the National Practitioner Data Bank, is a mandatory federal database containing physician malpractice settlements and disciplinary actions. It was formed in 1980, as the authors note, "to prevent practitioners from concealing their malpractice and disciplinary histories as they moved from one state to another." Only institutions like hospitals have access to most of it, which is critical for their hiring decisions. The identities of the actual doctors are never known to the public. However, a small amount of information is available publicly, so at least researchers can obtain important information about the state of patient safety.
But there's more. The authors note, "All program leaders advocated working with the state insurance department and boards of licensing on program design, to ensure that reporting requirements are triggered as seldom as possible" (emphasis added). In other words, to sell these programs to the medical establishment, the proponents would prefer they be designed to discourage anyone -- the public or other hospitals -- from learning about the malpractice record of negligent physicians.
The authors do recognize that "[t]hese strategies for avoiding physician reporting are not the best solution," but they do not back off of them. Instead, they suggest modifications, none of which foster patient safety, like establishing "presumptions" protecting doctors from disciplinary actions if their case is handled by one of these "early offer" programs, or establishing secrecy for these physicians until they have "multiple reportable incidents." And that's not all. The authors also warn that current government safety policies restricting reimbursements to hospitals when "never events" occur -- like when a surgeon cuts off the wrong limb -- may "burden" their programs by making doctors afraid to admit what they did. In other words, they seem to suggest that to make these "early offer" programs work properly, the government might have to start paying hospitals again for committing horrendous negligence.
The Affordable Care Act has authorized another $50 million to further explore state "litigation alternatives" like these programs. Congress has not yet funded the additional grants. However if they do, grants should no longer be given to proponents of programs who, in order to "sell" them, would undermine our federal and state patient safety laws. They should instead be given to serious patient safety advocates who can examine why obvious initiatives have not been implemented and why. Stopping preventable errors is the way to reduce liability costs -- period. This is a problem that should never be solved on the backs of innocent patients.