Bush Turns His Back on Fight for Patients' Rights

Four years ago, then-Gov. George W. Bush cast himself as a champion of patients' rights. Pressed by Al Gore in their final presidential debate on whether patients should be allowed to sue health plans for wrongfully withholding care, he pointed to a pioneering Texas law passed on his watch. "I brought Republicans and Democrats together … to get a patients' bill of rights," Bush said. "We are one of the first states that said you can sue an HMO for denying you proper coverage."

But President Bush, it seems, has changed his mind. The Texas law he championed is now before the U.S. Supreme Court, and this week the administration will ask that the justices strike it down.

Fewer Medical Malpractice Suits Are Making It To Court

New figures out March 17, 2004 from the Pennsylvania state Supreme Court show it is getting harder for patients to sue their doctors for malpractice.

In the last two years, the PA state Legislature and the governor have raised the standard that courts must use to determine if a malpractice case will be heard in court or whether the case is thrown out.

House Republican leaders said those figures show those higher standards are working.

The report issued by Chief Justice Ralph Cappy found there were fewer than 2,700 malpractice suits filed in Pennsylvania in the year 2000. The number increased in 2001 and 2002, but then dropped to 1,989 in 2003. That's a nearly 29 percent drop in the four-year period.

The head of the Pennsylvania Trial Lawyers Association, which has opposed most malpractice reforms, said the changes the Legislature has made have accomplished its goal.

Pennsylvania patients are split over the proposed caps on victims rights.

Tort Reform update

Is there a Malpractice Crisis? Then doesn't that mean too many doctors are making mistakes? If medical malpractice causes bad doctors to go out of business, maybe that’s a good thing. If there’s a medical malpractice insurance problem, let’s call it that. Insurance companies have taken losses in the last few years due to natural disasters and stock market woes. As a result, shareholder profits are not there like they once were.
NYU School of Law professor Jennifer Arlen, who published a piece on medical malpractice liabilities in the NYU Law Review in December, cites a Harvard Medical Practices study that "examined 30,195 written records in the New York state hospital system, and found that about 4 percent of hospitalized patients were injured by the care they received, with one-quarter of these injuries resulting from medical negligence." The report also stated that "one-quarter of the victims of negligence died."
Will caps on Damages lower Malpractice rates? The evidence says no! Washington state Insurance Commissioner Mike Kreidler and many legislators say caps alone won't solve the problem
The available data seem to support Kreidler and his allies, at least if the goal is to keep the cost of malpractice insurance down. A survey of malpractice insurers nationwide shows that rate increases vary widely by state and caps don't ensure lower rates. A review of malpractice rate increases last year by Medical Liability Monitor, an independent reporting service that tracks medical professional liability trends and issues, shows that states without caps on noneconomic damages had the lowest -- and highest -- rate increases.
Some consumer groups such as the Connecticut Patients' Rights Group oppose caps.

Pennsylvania Dentist loses license, now in jail

Jenny Stephens of Lansdale PA successfully sued an Ambler dentist for medical malpractice after finding out he performed a tooth extraction on her despite the fact that he “had bipolar disorder and an alcohol dependency that was under investigation by the Pennsylvania medical board concerning his fitness to practice dentistry‚” according to her lawsuit.

A tooth extraction performed by Dr. Gary William Pacropis in May 2000 left her unable to continue to perform her regular work. The procedure damaged the trigeminal nerve in her mouth‚ her jawbone became infected‚ and the right side of her mouth now droops down.
“It appears as if I had a stroke‚” Stephens said. “My life totally changed as I know it‚ and even talking hurts. Before this happened‚ I was always front and center.” Her only solution now is brain surgery‚ a risky procedure she won’t consider despite the fact that she lives with constant pain.

Stephens said she doesn’t know what she would’ve done had she not sued Pacropis‚ who in her words‚ “mutilated my mouth” during a routine tooth extraction in May 2000. “I’d be bankrupt‚” she said “I’d be penniless and I would lose everything I worked hard for all my life.”

Pacropis’ dental license was indefinitely suspended in February 2002‚ after he pleaded guilty to “crimes or misdemeanors involving moral turpitude‚” according to The Pennsylvania State Department’s Bureau of Professional and Occupational Affairs. Pacropis’ medical license was revoked permanently in August 2002 after he pleaded guilty and was sentenced in July 2002 for his fifth drunken-driving arrest in Montgomery County‚ according to court records. He remains in Montgomery County prison‚ according to county prison officials.

2 Doctors Sue for Malpractice

When two St. Clair County Illinois doctors were so seriously injured after their surgeries that they could no longer practice medicine, they filed medical malpractice suits. Dr. Larry Alves has heard his colleagues complain about high jury awards and sky-rocketing malpractice insurance rates and he empathizes with them. But he also knows firsthand the price of substandard medical care.

So does Dr. Donald Jerome, an ear, nose and throat specialist who practiced in Belleville, who underwent surgery on Nov. 21, 1997 on his neck to fuse two vertebrae. During the surgery, two surgical nurses pointed out a crack in the surgical drill to neurosurgeon Dr. William Sprich, but Sprich used the drill anyway, the complaint alleged.

A small piece of a drill broke off during the procedure and became lodged in Jerome's spine, according to court records, but Sprich completed the surgery without removing the metal. Jerome suffered permanent vocal chord paralysis, nerve damage, esophageal reflux and coughing spells.
Because of his medical condition, Jerome couldn't continue practicing medicine.

Bush and GOP push bogus malpractice 'crisis' with dubious witnesses

Dr. Robert Zaleski a Wheeling, W. Va., orthopedic surgeon was one of two dozen surgeons to walk off the job in January to protest his state's high costs of malpractice insurance arguing that "frivolous lawsuits" were driving up insurance premiums and forcing physicians to leave the state.
It appears that Zaleski may be more a source of the problem than a victim of it. Between 1987 and 2002, according to the West Virginia Board of Medicine, patients filed 14 lawsuits against Zaleski, eight of which resulted in payouts that together came to $1.7 million. In a 1985 lawsuit (one not among the 14 reported to the Board of Medicine), he admitted in a deposition to being addicted to prescription painkillers for a substantial part of the time that he was operating on people in the early 1980s. Not only was he a drug addict, but to maintain his Percodan habit, Zaleski allegedly wrote prescriptions for other local addicts.

In February 2001, responding to local doctors' allegations of 'lawsuit abuse", the Charleston Gazette undertook a computer-assisted analysis of more than 2,000 medical malpractice claims reported to the West Virginia Board of Medicine. The paper determined that far from being in a state of crisis, West Virginia ranked 35th in the country for median malpractice payouts. The paper also found that both the number of malpractice claims and the dollar amounts of the settlements and verdicts had actually declined between 1993 and 2001.

Last July, congressional Republicans launched hearings featuring testimony of a West Virginia doctor named Dr. Samuel Roberts. Roberts, one of only three doctors who testified, told the committee that he could not afford the insurance to continue delivering babies, and claimed that this year, "I will have to stop, leaving seven counties around me with no family physician delivering prenatal or maternity care." Roberts omitted some critical facts that might have explained some of his insurance woes: In 1987, he pleaded guilty to five counts of cocaine possession and was sentenced to five years probation, according to the Charleston Gazette. In response, the state suspended his medical license for a year, though it later reduced the penalty to five years of supervised probation. A year after his dire threats of doom to Congress, Roberts is today still practicing medicine.

In a speech at Little Rock Jan. 26, President Bush pointed out Dr. Sara McBee of Fayetteville and said that she'd stopped delivering babies because of rising insurance costs that were "a direct result of too many junk lawsuits." Bush was promoting his legislation to restrict medical malpractice lawsuits. He told the crowd:
"Sara McBee is here. There's Sara. She's from Fayetteville, Arkansas. She practices family medicine. She was delivering between 80 and 100 babies a year. Now, there's a soul - a good soul, who loves life to the point where she's willing to take her talents and deliver babies. It must be an unbelievably satisfying profession to bring life to be.
"And yet, in July of 2002, her insurance premiums had more than doubled. See, the litigation culture made it nearly impossible for her to practice her love. I say nearly impossible, because she wouldn't break her commitments to expecting patients and hung in there for a year. But her premiums continued to rise, and Dr. McBee has stopped delivering babies, as a direct result of too many junk lawsuits. And that's not right. That's not right." (Applause.)
Bush did not mention (although he knew it, according to McBee), that a medical malpractice suit is pending against McBee by a couple who say their child was born with brain damage and multiple disabilities because of mistakes by the doctor.

Doctor: improve Patient Safety to reduce malpractice costs

The current medical liability system works poorly for patients and physicians. Steep increases in malpractice premiums lead to physicians practicing "defensive medicine," which in turn contributes to rising health care costs, in addition to patients' enduring unnecessary medical procedures. Meanwhile, large numbers of Americans continue to suffer preventable medical injuries.
"Physicians must use their abilities to make care safer and injuries rarer, by developing, evaluating, and implementing safety improvements," said Stephen C. Schoenbaum, M.D., senior vice president at the Commonwealth Fund. "More active work on the part of physicians to improve care and reduce harm is clearly in the best interest of the public and physicians."
Physicians must play an active role in developing and implementing systems to improve patient safety, according to an article published in the Jan. 6 issue of Annals of Internal Medicine.
In "Malpractice Reform Must Include Steps to Prevent Medical Injury," The Commonwealth Fund and the Urban Institute say that focusing solely on capping malpractice awards -- the solution most commonly promoted by physicians in the current debate -- leaves out the largest problem: patient injury.

American hospitals and doctors delivering unsafe health care

Jan. 5,2004 - Donald Berwick says our nation's world-class hospitals and doctors are delivering health care that is unsafe and unreliable. But his call to dismantle the system makes the medical establishment uneasy -- because he used to be part of it, according to a Boston Globe article on health care.

A respected voice in health care analysis, Berwicks vision is remarkable and he says attainable:
When you wanted to see your doctor, you would call in the morning and get an appointment that afternoon. And it would start on time, not an hour and three outdated People magazines later.
You would maintain control of your medical record, rather than needing a subpoena just to get a peek at it.
Hospitals would have genuine one-stop registration, and every employee would be trained to have the customer-service touch of a Ritz-Carlton concierge. No one would ask you to wear one of those open-backed johnnies.
Waiting would be kept to a minimum, because the hospital will have embraced flow management, anticipating rather than just reacting. There would be no visiting hours in the intensive care unit, since any family member could visit at any time.
Medication errors -- overdoses, allergic reactions, and other adverse responses -- would be all but eliminated by the universal adoption of computerized drug-ordering systems. Hospitals would impose a zero-tolerance policy for workers failing to wash their hands, a move that could save upward of 10,000 lives a year.
Communication and patient-advocacy systems would put an end to horror stories like the one involving the 5-year-old boy who died at Children's Hospital last year because each of his many doctors assumed another doctor was in charge.

Inexperienced Surgeons pose Gastric Bypass Risk

January 5, 2004 - A growing collection of research suggests that this increasingly popular gastric bypass surgery operation commonly used for weight loss can have a hidden risk: inexperienced surgeons. "Gastric bypass is the hottest thing in surgery right now, unfortunately some of that is economically driven," said Dr. Steven Rothenberg, a surgeon at Presbyterian/St. Luke's Medical Center in Denver. "The thing that made it take off is that now it can be done laparoscopically." Surgeons promote laparoscopic surgery to patients as safer than traditional more invasive surgery. And it is -- in the hands of experienced doctors.

But the gastric bypass is so difficult, according to physicians who have tracked the results of their cases, that patients of surgeons who have done fewer than 70 to 100 operations have complications more often -- and a greater chance of death from those complications. Some fear that surgeons are rushing into the field for economic reasons without adequate training. Some hospitals allow surgeons to operate after only one weekend seminar.

http://www.ama-assn.org/amednews/2003/12/08/prsb1208.htm

Victims often don't collect large verdicts

An analysis of top verdicts in Pinellas shows few people walk away rich. Most settle for considerably less.
A St. Petersburg Times review of some of the top verdicts in Pinellas County history shows that few people wring every penny out of a large jury award. Most cases are settled for far less while an appeal is pending, sometimes years after the verdict. Some people never collect anything.
Pinellas is hardly unique. The same holds true for Florida and the nation, lawyers say.
In a nine-year period ending in 1995, the state Comptroller's Office estimated that a jury award was paid in 36 percent of cases with punitive damages. In the remaining 64 percent, the money either could not be collected or had yet to be collected.The study showed that total collections were only 13.2 cents on the dollar.

Bad Doctors keep their medical licenses

Last May, Dr. Richard Kaul went before the New Jersey Board of Medical Examiners to plead to keep his doctor's license.

Kaul had been convicted in England of negligent manslaughter after a dental patient died under anesthesia. His British license was revoked when he admitted that his "inattention" allowed the patient's blood oxygen to drop low enough to cause brain hypoxia and, finally, cardiac arrest.

But the New Jersey board allowed Kaul to keep his state license if he agreed to a six-month suspension.

The case while dramatic, nonetheless typifies the Board of Medical Examiners' attitude toward doctors who harm their patients. The board rarely bans doctors from practicing, even when they kill people, a review of the board's discipline records, dating back to 1972, shows.

In fact, doctors who repeatedly commit malpractice or engage in behavior that could harm patients on multiple occasions are about twice as likely to be allowed to continue practicing than to be banned, the records show.

The survey discovered 290 cases in which doctors are described as repeatedly committing malpractice. In only 90 of those cases -- about one in three -- were the doctors permanently prevented from continuing to practice. In all other cases they were fined, reprimanded or given temporary suspensions, but were allowed to continue working.

Jim Edwards in the Dec. 17, 2003 issiue of the New Jersey Law Journal undertook the study to test a key argument in the debate over the medical malpractice insurance crisis: Whether the medical profession allows bad doctors to continue practicing after they commit malpractice, thus increasing malpractice insurance premiums.

Doctors, who earlier this year nearly succeeded in convincing the state Legislature to cap damages for pain and suffering at $250,000, have contended that the malpractice insurance crisis is caused largely by frivolous suits and jackpot jury awards, not by bad doctors.

Overall, the survey found that since 1972, the New Jersey Board of Medical Examiners has disciplined 800 doctors for activity harmful to patients. About 32 percent of the 3,461 discipline reports issued by the board describe cases in which the board has found that a doctor has harmed a patient.

The numbers are surprisingly low -- only about 26 cases a year. By contrast, 1,650 to 2,000 medical malpractice suits are filed every year, according to the Administrative Office of the Courts. Settlements in such cases are often secret, but the federal National Practitioner Data Bank of Rockville, Md., tracks malpractice insurance payouts. In New Jersey, insurers made 940 malpractice payments in 2001, the most recent year for which figures are available, according to the data bank.

Put simply, the disparity between 940 payments and 26 disciplinary actions means that only about 2.7 percent of malpractice payments result in doctors being disciplined.

Indeed, according to cases in which a jury has found malpractice or harmful behavior, none of the following fact patterns guarantees a total ban on medical practice:

Killing a cancer patient with a dose of chemotherapy 10 times the correct strength, at the same time as prescribing antibiotics to which the child was allergic.
Deliberately dropping a fetus in the trash instead of following proper disposal laws.
Being convicted as a cocaine dealer.
Allowing a patient to bleed to death internally in the emergency room as she lay unexamined overnight -- and then filling out the post-mortem paperwork to say she was seen before her death.
Anesthetizing a patient in an MRI machine and then abandoning him so that he dies when complications go unattended.
Repeatedly sexually abusing multiple patients.

In those examples, the doctors were allowed to continue practicing. The doctor who killed the cancer patient, for instance, was fined $5,000.

The Law Journal's survey found many doctors are allowed to continue practicing by the Board of Medical Examiners. And then they reappear before the board on new charges of harming patients.

Take Dr. David Bradway, for instance. In 1980 his license was surrendered with prejudice -- meaning he could not practice at all -- based on a variety of allegations regarding his handling of drugs.

Between 1986 and 1988, however, the board gradually restored his license, granting him more and more practice privileges. By November 1997, he was granted an unrestricted license. Two years later, however, after seven patients had died in Bradway's "Ultra-Rapid Detox" drug treatment program in Merchantville, the board put him back on restricted practice, and banned him from drug rehab remedies.

In Texas from Sept. 1, 1990, to Sept. 31, 2002, 51.3 percent of malpractice payouts were caused by 6.5 percent of Texas doctors with two or more medical malpractice claimsFor example, Physician Number 37949, licensed in Texas, settled or lost 13 medical malpractice suits involving improper treatment or improper performance of surgery between 1990 and 1997. Two of the suits involved the same allegation: a foreign body left in the patient during surgery. Damages to this doctor's patients exceeded $2 million. This doctor has never been disciplined by authorities in Texas.


Or how about the New York doctor who was so proud of his work that he carved his initials into his clients abdomen. Four months later he was still practicing medicine!

One Victim's view of Malpractice caps

Mindy Snyder was a young registered nurse who went to a hospital ER complaining of a headache. Her doctor, who had been practicing for 3 months gave her an overdose of 60 mg of morphine by direct injection and left her unattended. She fell into a coma for almost a month. The result was severe brain damage. She was transferred to a rehab hospital, where she spent the next six months. She was rendered an incomplete quadriplegic. Mindy's screams were so horrible that nursing staff had to receive stress counseling. The hospital then created a second phony set of altered records to cover up their medical malpractice.
Mindy's economic damages were a staggering $8 million. Close to half a million dollars represented money she already owed her doctors since their negligence. Roughly $6 million was required to pay doctors to keep Mindy alive in the future - this $ would all go to doctor's, not one cent to her - for future surgeries, therapies, medications, wheelchairs, hospital beds, adaptive housing, psychological counseling, etc. These figures were not disputed. Not one cent would pay her for the total loss of quality of life and her unthinkable pain and torment.
Is there a damage cap proponent who would look her in the eyes and tell her that $250,000 was adequate compensation for the total destruction to her life caused by bad medicine?
For more medical malpractice victim's stories read here.

Medical Errors

A recent survey conducted by the Harvard School of Public Health and the Henry J. Kaiser Family Foundation, found:
That 35% of doctors in the survey said that either they or members of their families had experienced medical errors in the course of being treated, and most said the errors had "serious health consequences," such as death, long-term disability or severe pain.
Three in ten doctors had seen an error that caused serious harm to patients outside their families in the past year.

Malpractice incidents high compared to the number of lawsuits filed

It was reported in the New England Journal of Medicine, July 1991, that only one person in 65 injured by a doctor's negligence ever files suit. -- New England Journal of Medicine July 1991.
Researchers analyzed 30,121 hospital records of patients discharged from 51 New York State Hospitals in 1984. Of that sample, an estimated 27,177 cases involved some type of medical negligence, including 6,895 deaths and 877 instances of permanent disability of more than 50 percent.
About 16 times as many patients suffered an injury from negligence as received compensation from the tort liability system. Of these accidental medical injuries, 70 percent were preventable.
If included in the National Vital Statistics Report, deaths by medical errors would have been listed as the No. 5 leading cause of death in the U.S. Texas Medical Error statistics.