Pending state laws on malpractice help hospitals look the other way on medical errors

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As many as 400,000 people die in U.S. hospitals every year due to medical errors. Yet some states continue to make it more difficult for patients to sue a provider for medical malpractice and hope to get anything close to recompense for the injuries suffered.

In Missouri, the state Senate earlier this month approved a bill that would limit evidence of medical bills incurred to actual out-of-pocket costs for insurers and patients, not the actual cost of care.

"If you were the defendant, you would know exactly what the medical cost was," State Sen. Ed Emery, a Republican who sponsored the bill, told the Associated Press. "It's a hard number."

Meanwhile, in Georgia, a bill is wending its way through the Legislature that would bar patients from suing for malpractice altogether. Instead, they would present their case to a panel of "healthcare experts." The experts would actually consist of physicians, an accountant, an attorney and business leaders. All would be political appointees. The panel would have to render a decision within 10 days of receiving an application, and it is unclear whether they would actually be required to call witnesses.

Providers would have a right to appeal any judgments to an administrative law judge, but the rights of patients to do so are unaddressed. Any judgment against a provider would not be reported to the state medical board or any other regulatory agency. Awards would come from a fund created by annual assessments collected from physicians, ranging from $500 to $25,300 a year, depending on their specialty.

The sponsor of that bill, Georgia State Sen. Renee Unterman, a Republican, has received big donations from pharmaceutical firms and the American Legislative Exchange Council, a conservative group that focuses on introducing model legislation in states that hew toward right-of-center philosophies.

The rationale behind replacing civil litigation with this system would be to cut down on the practice of defensive medicine and frivolous lawsuits--both issues that are regularly brought up by conservative politicians as among the biggest drivers behind healthcare costs. Whether the 400,000 patients who die in hospitals due to medical errors is a frivolity should remain up for debate.

And that debate would be quite healthy if Missouri or Georgia had transparent systems on the state level for reporting medical errors and sentinel events in hospitals for public review. Neither do. Georgia experimented with such a system about 15 years ago, but gave it up. Hospitals in Missouri are apparently content with the current opacity.

The combination of bills that supposedly reform traditional avenues of litigation and lack of reasons to report errors makes it harder to reduce them, even though they almost invariably lead to higher costs of care. Meanwhile, hospitals often use the current culture of secrecy to try and withhold information from patients and their families.

Even in states that have public reporting systems, the level of disclosure is often quite low. In Minnesota, for example, there were only 316 adverse events reported by hospitals to state regulators between October 2014 and October 2015. That's in a state with 5.5 million people. 

Although there has been some movement in recent years toward hospitals apologizing to patients for medical errors--an action that can sometimes preclude a lawsuit--those institutions are the exception to the rule.

Instead, it seems the majority of the hospitals would rather keep such incidents as quiet as possible and at the very least look the other way while it becomes more onerous for patients to be made whole again.

Perhaps a cost benefit analysis has been made to lead hospitals down this path. If it has, it will never see the light of day. Unfortunately, the chances of an open reporting system that would cut down on hospital errors, costs and human misery has almost the same chance of seeing daylight. – Ron (@FierceHealth)

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