The Oregon Legislature is back in session and grappling with proposed health care transformation. Yesterday, we learned that some legislators are more concerned about “defensive medicine” and putting an arbitrary limit on access to justice for Oregonians who are on the Oregon Health Plan or Medicaid rather than they are about keeping patients safe.
Did you know that more than 98,000 Americans die every year from medical errors? Here is some context: That number is equivalent to a 747 jet liner crashing every day of the year killing all on board. So when we talk about healthcare transformation, shouldn’t we really be talking about patient safety?
We need to focus on the real problem with health care delivery and that is keeping patients safe and informed. Recently, Legacy Emanuel participated in a national study where they implemented simple procedures and check lists for all hospital staff to follow. You know, things like washing your hands between each patient, making certain all medical equipment is accounted for before finishing a surgery, that the patient is the same person as the chart on the end of their bed. According to the Oregonian’s report on that study, Legacy saved over $13 million in one year, cut down on medical errors and significantly lowered their infection and injury rates. Imagine the cost savings if these check lists and procedures were implemented in every Oregon health facility. Imagine the health improvement and lives saved from real health care transformation that starts with patient safety.
Instead of focusing on patient safety, we have legislators holding forth about something they call “defensive medicine,” They are using that label as a tool to put arbitrary monetary limits on patients’ rights. Here is a modest proposal: If we’re going to talk about things like this, let’s resolve to get the facts straight.
The label “defensive medicine” presumably refers to tests ordered by a provider for purposes of preventing or defending against a lawsuit. A provider who orders testing with no therapeutic value commits insurance fraud, violates Oregon law, and ignores the first rule of medical ethics to do no harm. The doctor who orders unnecessary tests puts the patient at risk by subjecting the patient to an unnecessary medical procedure. And legislators think that Oregon doctors routinely order unnecessary tests, committing Medicare or insurance fraud and putting patients at risk because what? To keep insurance premiums lower? Really?
In the same opinion piece there was a second solution to “the problem.” There is a reason for the quotes: No one has ever identified the problem. Even for lack of a problem, some Oregon legislators seek to impose a two-tier justice system. Under the plan that is a solution in search of a problem, the two-tier system would mean two levels of justice. The first tier is reserved for individuals with private insurance. The second tier is for patients on the Oregon Health Plan (OHP).
The new legislation would strip OHP patients a basic constitutional right to trial by jury and instead and would limit or cap how much OHP patients can sue for when they are injured due to negligent, substandard medical care. That’s right, under the solution to the non-problem OHP patients claims would be limited even when a provider gives care that is proven to be negligent.
The legislators pushing this agenda presumably are doing it in the name of lower doctor malpractice premiums. What they are not saying is that this solution to non-problem has been tried in other states. The result: No noticeable effect on doctor liability insurance premiums.
Under this emerging plan, if you have the good fortune to have your own insurance, you would be able to hold a negligent care provider accountable for substandard or negligent care. If a surgeon mistakenly amputates the wrong leg and you are on OHP, the two-tier system of justice would limit your access to justice, no matter how egregious the negligence, no matter how high your lifetime medical costs, no matter your life situation. And this limit would take the form of a fixed limitation set by the Oregon Legislature. Because those who believe that their solution is necessary are also dead certain that the Oregon Legislature is better able to set damages in all cases than a jury that decides each case on the evidence.
It’s time that the political agenda of the few take a back seat to patient safety. It is time to make certain that health care transformation puts patient safety first.
John Gear says
This is so important for people to understand, thank you for posting this. I am putting this up on my blog.
Patrick Angel says
Call to action: Oregonians should let their legislative representatives know that any bill that restricts patients' rights threatens patient safety. A phone call or letter to your representative is a good way to make sure Salem knows attacks on patient safety are not acceptable.
Terry Hunt says
Quite true. Wasn't Harvard U involved in a study several years ago that indicated:
1. To everybody's surprise - the primary cause of medical negligence claims is ---- medical negligence!
2. There was a poor overlap between the cases of actual negligence and the law suits filed. (Perhaps it's a genetic issue: do careless doctors tend to have siblings who become lawyers?)
My own comments: (after fortunately collecting on the only two medical malpractice cases I ever filed, and then quitting while I was ahead)
the biggest factor producing high insurance premiums is the stock market
and, the biggest driving force behind med mal cases is desperate families who have no other way to get financial help with the catastrophic expenses they face following some serious injuries. Botched baby cases have got to be among the worst.
Richard Vangelisti says
Thank you for posting. I know that research has shown that artificial caps on an injured person's rights to recover full compensation for injuries does NOT lower insurance rates for doctors. It is worth while to see the documentary Hot Coffee.
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