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Articles Posted in Legislation

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A study prepared by the Chicago Reporter shows that black Chicago area nursing home residents receive the worst quality care in the country. There is just one nursing home in the Chicago area rated excellent by the federal government where the majority of the patients are black. These homes have more federal violations, medical malpractice and personal injury claims against them then majority white nursing homes.

The Reporter analyzed records from over 15,000 nursing homes nationwide in order to determine whether disparities exist in the quality of care based on a variety of factors, including race. The Reporter found that the worst rating was given to 57% of Chicago area nursing homes where the patient population was majority black.

Nursing homes have to comply with a variety of state and federal regulations that govern the quality of care required of their patients. There is a particular need to regulate nursing homes as they are usually operated as a for profit business and the patients are typically infirm and/or elderly. In 1987 the federal government passed The Omnibus Budget Reconcilliation Act which outlined the rights of nursing home patients, including the right to be properly evaluated at the time of admission and regularly thereafter as well as the right to have a doctor care for them.

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What does reforming medical malpractice have to do with the current health care reform debate that is a hot topic in Washington and here in Illinois? Not much, at least according to one ranking United States Senator.

“I honestly really don’t see this as a health care issue,” said Sen. Sheldon Whitehouse (D-R.I.). The Senator, a former Rhode Island attorney general, argues that medical malpractice is more of an “intruder” into the debate to protect insurance companies, hospitals and doctors from being accountable for their mistakes.

There is very little objective evidence that malpractice reforms, like capping damages awards, have any impact on health care costs. California, which has had caps on medical malpractice awards for more then thirty years, has not seen health care costs reduced over that time period. The argument that doctors are practicing defensive medicine by ordering expensive tests to protect themselves from litigation is equally unpersuasive. Susan Steinman, the American Association for Justice’s director of policy, argued that hospitals and doctors seek additional tests to make more money, not because of the fear of lawsuits. Defensive medicine is not nearly the issue that doctors make it out to be and is more of a red herring to distract from real problems with the health care system, she said.

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How do we cap medical malpractice without capping medical malpractice awards for those patients who are injured by the negligence of doctors. Everyone agrees that the health care system in the United States is in need of a drastic overhaul. The key is accomplishing an overhaul without further abridging the rights of the needy.

Andy Hoffman in Friday’s Daily Kos Online wrote an excellent editorial suggesting a novel, yet thusfar, unexplored solution to reducing the cost of medical malpractice claims on society. Weed out the worst offenders, those doctors who repeatedly victimize their patients and have no business practicing medicine.

Focusing on medical malpractice caps will do nothing to reduce health care costs. California, as Hoffman notes, has had caps on medical malpractice awards for the past 34 years. The caps in california are drastic, $250,000 limits on malpractice awards, and have had literally no effect on the cost of malpractice insurance or the price of health care in that state. Why not focus on the cause of medical malpractice cases and the conduct of those bad doctors who are driving up prices for everyone else, rather then the victims? Sounds reasonable to us.

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On March 26, 2009 we reported on the efforts of one family to have the Feres doctrine legislatively overturned.  If you recall the Feres doctrine prohibits an active member of the United States military from suing the an Army hospital for medical malpractice.  This prohibition on medical malpractice suits brought by members of the armed services has long been an unfair bar to the legitimate claims of our nation’s heroes.

We are glad to announce that a House Judiciary subcommittee recently approved legislation to correct the injustice that is the Feres doctrine.  This new bill would allow servicemen and their families to hold the military accountable for medical malpractice.  The Carmelo Rodriguez Military Medical Accountability Act of 2009 is sponsored by Rep. Maurice hinchey (D-NY) and is named after serviceman Carmelo Rodriguez who died in 2007 after his cancer was misdiagnosed by military doctors.  Below is a CBS news report about the late Sgt. Rodriguez.

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One of the principal arguments backers of tort reform use to justify damages caps is that increased insurance premiums have an adverse effect on health care costs that are passed on to the consumer.  This argument persists in spite of the fact that there is little or no evidence that this actually occurs.  In California, for instance, caps on medical malpractice damages have been in place for more then thirty years and there has been health care savings passed on to the patient.  The Dallas Morning News is reporting this morning that tort reform is not a panacea for health care costs.

In Texas voters were convinced to amend the state constution to impose a $250,000 cap on pain and suffering damage award.  Again, caps have failed to lower health care costs.  One study, from Dartmouth College, found that health care costs actually rose 24% in the three years after tort reform damages caps were imposed.

Now researchers at the University of Alabama have analyzed health care costs in the 27 states where there is some limit on damages imposed by the legislature, otherwise known as tort reform.  They concluded that there is no correlation between tort reform damages caps and decreased costs of health care.  In fact the price of health insurance has doubled in those states with damages caps and medicare spending has increased on average nearly 5% a year.

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Sadly, medical mistakes continue to be one of the leading causes of death in the United States.  There are close to 100,000 preventable deaths a year in America making medical errors the fifth leading cause of death in our country.  A culture of shame and a lack of accountability often times prevents full disclosure of medical mistakes to the victims or their families.

In Great Britain steps are being taken at the legislative level to change the secrecy that often involves a medical mistake.  Legislation is being introduced which would make it a doctor’s duty to inform the patient or his family if a medical mistake has occured.  This duty of candor will be imposed upon all health care providers and their corporate managers.

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Five medical malpractice cases pending in California settled this week for a sum of $1 million.  The settlements arise out of improper patient care that occured at a Northern California kidney transplant center that has been at the center of a controversy revolving around a poor record of patient care.

Federal and state investigators forced the hospital to close after the transplant waiting list grew to 1600 patients in 2006 while the center did less then 70 transplants.  It has been alleged that these transplants were either delayed or not performed due to bureacratic barriers at the the institution which caused some of the patient’s conditions to decline or die before they could receive life saving treatment.

The low dollar figures in these settlements are emblematic of the unfairness caused by California’s arbitrary cap on medical malpractice damages which sets the maximum compensation for these types of claims at $250,000.  This cap figure has remained unchanged since it was imposed in the 1970s.  The Supreme Court in Illinois is currently deciding the constitutionality of caps on medical malpractice awards.

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Glori Anne Scott of the wrote an excellent piece in support of the Colorado Legislature’s recent attempts to raise statutory caps on medical malpractice cases in that state.

Her explanation applies to counter the arguments of tort reformers everywhere.  While it will likely be a long and difficult battle to educate the Colorado legislature on the benefits of allowing a jury to fairly and accurately adjudicate medical malpractice cases on their merits without artificial limits on liability, the fact that the issue is even on the agenda is a positive steps for consumers and patients nationwide.

Here is an excerpt from her excellent piece:

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MarineCorpsSeal.jpgShould an active member of the United States military be able to sue the United States Government for medical malpractice?  The answer according to the United States Supreme Court in Feres v. The United States, 24 U.S. 135 (1950) is no.  The Feres doctrine, as it is commonly know, prohibits an active member of the military and not on furlough from suing the United States for injuries caused by another member of the military.  This bar does not extend to family members of active military personnel.

A congressman from New York has introduced legislation in congress to reverse the Feres decision and make the military accountable for the medical malpractice of military doctors.  The Carmelo Rodriguez Military Medical Accountability Act of 2009 is the subject of hearings that are currently before the House Judiciary Subcommittee on Commercial and Administrative Law.  Carmelo Rodriguez was a Marine who died in 2007 after military doctors misdiagnosed a melanoma on his left buttock.  Motivated by his memory, Sgt. Rodriguez’s family has spearheaded this legislation.

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Survivors of a victim of a wrongful death that occured before May 31, 2007 in Illinois were limited under the Illinois Wrongful Death Act to recover only pecuniary loses completely discounting the survivors grief from consideration.  Pecunary loss includes the loss of benefit of the decedent’s love, affection, care, attention, companionship, guidance and protection.  Now an amendment to the act allows the recovery of grief, sorrow and mental suffering of the survivors of a wrongful death.

Grief, sorrow and mental suffering have long been recognized in medicine as scientifically based components of the anguish associated with the loss of a loved one.  The law now more accurately reflects the actual loses sustained by the survivors of a wrongful death.

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