By Richard A. Silver
The Institute of Medicine, in its seminal 1999 work “To Err Is Human,” indicated that there were more than 100,000 deaths per year as a result of medical errors in hospitals in the United States. More recent studies have shown that there has been a dramatic increase in deaths due to medical malpractice in U.S. hospitals — 440,000 deaths each year are linked to medical errors, according to the article “Survive Your Stay at the Hospital in Consumer Reports (May 2014).
These more recent studies are of great concern and demonstrate that hospitals must enforce more stringent safety precautions with their own staffs and attending physicians. This is an alarming statistic in our healthcare system, which will require vigilant and further action by the Federal Government through Medicare regulations.
Many physicians and insurance companies have claimed that the ordering of unnecessary tests is “defensive medicine” and that, as a result, there is a significant rise in the cost of medical malpractice insurance. This oft-cited canard is without foundation.
Dr. Darrell Kirch, the president and chief executive officer of the Association of American Medical Colleges, recently gave a lecture indicating that the general assertion in reference to defensive medicine is without foundation and that the cost of defensive medicine is in fact very small. (See also Kachalia A. Mello MM (2011). “New Directions in Medical Liability Reform.” New England Journal of Medicine. 364:1564-1572. Mello, MM, Chandra A, Gawande AA, Studdert DM (2010). “National Costs of the Medical Liability System.” Health Affairs. 29(9):1569-1577. ) The U.S. Congress Office of Technology Assessment (OTA), defines defensive medicine as “when doctors order tests, procedures, or visits, or avoid certain high-risk patients or procedures, primarily (but not solely) because of concern about malpractice liability.”
There is no reliable scientific study that supports that assertion. Quite to the contrary, any studies that have been done reveal that defensive medicine is a very small percentage of general medical costs throughout the United States.
Professor Thomas Baker of the University of Pennsylvania, in his 2005 book The Medical Malpractice Myth, also debunks the myth that defensive medicine is significant in driving up the cost of medical malpractice insurance in his chapter on “The Goods on Defensive Medicine.”
It is important to note that when a physician orders a test through Medicare, that physician must certify to Medicare that the test (treatment, medication, equipment) are medically necessary for the patient’s condition. How can a doctor claim he or she ordered an unnecessary test when they certify that the test is medically necessary?
My personal experience is that a very significant part of the medical errors which form the foundation of the medical malpractice cases of our firm are based on the fact that necessary testing is not ordered.
Number of Connecticut’s Malpractice Cases Significantly Reduced in the Last 10 Years
Connecticut’s malpractice cases have decreased significantly over the last 10 years. In the 1993-1994 period, there were 337 cases filed. This number dropped to 298 in the 2010-2011 period.
Physicians and insurance companies have frequently maintained that malpractice is on the rise, and that there is an increase in malpractice actions in the state of Connecticut. This is in fact refuted by the actual number of filings from 2008 through 2011. In fact, there has been a 22% reduction in the number of cases instituted in the 1993-94 period to the July 1, 2011-June 30, 2013 period.
There are a number of reasons why there has been a diminution of the number of medical malpractice cases in Connecticut. Two significant reasons are:
Connecticut Good Faith Certificate: The Connecticut Good Faith Certificate requires that before a medical malpractice case can be instituted, the injured party must produce a Certificate of Good Faith from a similar healthcare provider, in writing and signed by that similar provider that there appears to be evidence of medical negligence. The opinion must include a detailed basis for the formation of such opinion. (Conn General Statute §52-190a. See also 52-184(c)). The clear meaning of this requirement is that if there is a potential case against a neurosurgeon, for example, the plaintiff must have a neurosurgeon opine and sign the Good Faith Certificate. There have been claims by physicians to the Connecticut Legislature that a podiatrist can testify against a neurosurgeon. This allegation is completely without foundation.
Connecticut Contingent Fee: Connecticut has a contingency fee system and essentially, medical malpractice cases are generally pursued under that system. The traditional agreement provides that the attorney will advance the costs required to prepare and pursue a case, which can often be in excess of $100,000. Ancillary costs for depositions alone, for example, can range from $1,000 to $1,500 for one day. Expert compensation can often cost many thousands of dollars. A complete evaluation of a case, including medical records and expert reviews, can cost a law firm from $5,000 – $15,000 before it makes a decision to pursue the matter. Based on these costs, counsel is not willing to undertake a case unless there is a demonstration that there is actual malpractice, significant injury or death and an excellent chance of success. Our firm, and other firms who concentrate in the area of malpractice, do not accept a case on the basis that the case will settle, but rather that the case will go to trial and the injured party will be successful.
All these factors have reduced the number of cases that are in fact instituted.
While there is often a claim by insurance companies and the medical community that there are frivolous lawsuits, this claim is not supported by the facts because of the requirement of the Good Faith Certificate, the out-of-pocket costs and the enormous amount of time that must be expended by legal counsel.
Steven Brill, in his Time Magazine article “Why Medical Bills Are Killing Us” (February 20, 2013), exposed the enormous unfounded costs of hospital care. His article should lead to an exploration of the real costs of medical care in the hospitals.
In a recent article, the Stamford Advocate pointed out that an MRI at Stamford Hospital cost $2,363. At the Yale New-Haven Hospital, it cost $2,247. A local private radiology group claimed its cost for the same MRI was $754. While it may be true that in a hospital setting costs are higher (in part because hospitals are rendering uncompensated costs as a result of indigents and the public without insurance), in Connecticut, these costs are reimbursed, to some extent, by the state. In no event can a price difference of three times be justified.
One way that our enormous hospital costs in the United States might be reduced is through government intervention through the mechanism of Medicare control and oversight.
You can help! It is very important when you receive a bill from the hospital that is not covered by insurance to in fact check that bill very carefully. Make sure the costs are justified and not unreasonable. In fact, you should check bills that are covered by insurance as well.
“Hospitals make money from their own mistakes because insurers pay them for the longer stays and extra care that patients need to treat surgical complications that could have been prevented,” the New York Times reported about a study that was published in The Journal of the American Medical Association earlier this year. Changing the payment system to stop rewarding poor care may help to bring down surgical complication rates, the researchers say. If the system does not change, hospitals have little incentive to improve: in fact, some will wind up losing money if they take better care of patients.
More Recent Medical Articles
Prostate Cancer Study
A recent article in the New England Journal of Medicine (Volume 368 No. 5 pages 397-492 January 2013) which analyzed the complications from surgery (prostatectomy) v. radiation (radiotherapy) is very illuminating. The study results are as follows: Patients undergoing prostatectomy were more likely to have urinary incontinence than were those undergoing radiotherapy at 2 years (odds ratio, 6.22; 95%, 1.92 to 20.29) and 5 years (odds ratio, 5.10). However, no significant between-group difference in the odds of urinary incontinence was noted at 15 years. Patients undergoing operative procedures were more likely to have erectile dysfunction at 2 years (odds ratio, 3.45, 1.93 to 6.17) and 5 years (odds ratio, 1.96; 1.5 to 3.63) and no significant between-group difference was noted at 15 years. Patients undergoing prostatectomy were less likely to have bowel urgency at 2 years (odds ratio, 0.39; 0.22 to 0.68) and 5 years (odds ratio, 0.47; 0.26 to 0.84), again with no significant between-group difference in the odds of bowel urgency at 15 years.
Maternal Fetal Monitoring
A recent article, “Electronic Fetal Monitoring Plays a Vital Role in the Management of Pregnant Women and Their Babies,” published in the AAJ Birth Trauma Litigation Group Newsletter, February, 2013, indicates that electrical fetal monitoring is extremely important in protecting the health of the mother and the baby. While there has been effort by some medical organizations to not vigorously pursue fetal monitoring, it is clear that fetal monitoring is extremely important to protect the infant against significant hypoxia and allow intervention to protect fetal injury.