Preventable Medical Errors – The Sixth Biggest Killer in America Medical Negligence Lawsuits – Few and Far Between No Correlation Between Malpractice Payouts and Insurance PremiumsMESSAGE FROM ASSOC. PROF. PAMELA S. EVERS, ATTORNEY AT LAWThis article has been offered by web posting to UNCW students for educational purposes only. Articles posted may have been edited for clarity and format by Pamela S. Evers. PREVENTABLE MEDICAL ERRORS – THE SIXTH BIGGEST KILLER IN AMERICA Preventable medical errors kill and seriously injure hundreds of thousands of Americans every year. Any discussion ofmedical negligence that does not involve preventable medical errors ignores this fundamental problem. And while some interested parties would prefer to focus on doctors’ insurance premiums, health care costs, or alternative compensation systems—anything other than the negligence itself—reducing medical errors is the best way to address all the related problems. Preventing medical errors will lower health care costs, reduce doctors’ insurance premiums, and protect the health and well-being of patients. The Institute of Medicine’s (IOM) seminal study ofpreventable medical errors estimated as many as98,000 people die every year at a cost of $29 billion.i If the Centers for Disease Control were to includepreventable medical errors as a category, theseconclusions would make it the sixth leading cause ofdeath in America. iiFurther research has confirmed the extent of medicalerrors. The Institute for Healthcare Improvementestimates there are 15 million incidents of medicalharm each year.iii HealthGrades, the nation’s leadinghealthcare rating organization, found that Medicarepatients who experienced a patient-safety incident hada one-in-five chance of dying as a result.ivYet despite these numbers, the American public remains unaware of just how pervasive the problem is. Even though one in three Americans say that they or a family member has experienced a medical error, and one in five say that a medical error has caused either themselves or a family member serious health problems or death, surveys show thatAmericans vastly underestimate the extent of medical errors.v About half of respondents believe the annual death total from medical errors to be 5,000 or less—nearly 20 times lower than the IOM’s estimate. People have been led to believe that there are hundreds of thousands of medical negligence lawsuits every year and only a handful of genuine medical errors. In reality, the reverse is true. There are very few medical negligence lawsuits, and hundreds of thousands dying from preventable medical errors. As University of Pennsylvania law professor Tom Baker puts it, “We have an epidemic of medical malpractice, not of malpractice lawsuits.”viMuch of the discussion surrounding medical negligence revolves around costs, whether it be the cost of physicians’ insurance or the cost to health care. While these are the subject of much debate and acrimony, the potential savings from the elimination of medical errors are undeniable.Dollars better spent on patient safetyThe Center for Medicare & Medicaid Services (CMS) has, in recent years, recognized the potential for financial savings by reducing medical errors. CMS has stopped paying for hospital and practitioner errors, and thus created a financial incentive for hospitals to embrace patient safety. After evaluating a number of billable hospital-acquired conditions, CMS and the CDC decided on eight expensive but “reasonably preventable” secondary conditions that would not be reimbursed by Medicare, and could not be billed to patients.vii Previously, Medicare rewarded hospital errors with larger reimbursements, by paying them an extra amount to treat various preventable complications that developed as a result of hospital negligence. The new rules, which went into effect in 2008, are expected to save taxpayers at least $21 million annually and will encourage hospitals to take steps to avoid “reasonably preventable” hospital acquired conditions. Private insurers likeBlue Cross/Blue Shield Association and Aetna have also implemented similar policies not to reimburse medical providers for care related to problems or complications that should not occur in the normal course of hospitalization.ix i To Err Is Human: Building a Safer Health System, Institute of Medicine, 1999 ii Deaths/Mortality, 2005, National Center for Health Care Statistics at the Centers for Disease Control, viewed at http://www.cdc.gov/nchs/fastats/deaths.htm. iii Institute for Healthcare Improvement: Campaign – FAQs, Institute for Healthcare Improvement, http://www.ihi.org/IHI/Programs/Campaign/Campaign.htm?TabId=6. iv The Fifth Annual HealthGrades Patient Safety in American Hospitals Study, HealthGrades, April 2008. v National Survey on Consumers' Experiences With Patient Safety and Quality Information, Kaiser Family Foundation, November 17, 2004. Tom Baker, The Medical Malpractice Myth, 2005. vii Those medical complications not covered were: Object Left in Surgery (Serious Preventable Event); Air Embolism (Serious Preventable Event); Blood Incompatibility (Serious Preventable Event); Catheter-Associated Urinary TractInfections Pressure Ulcers (Decubitus Ulcers); Vascular Catheter-Associated Infection Surgical Site Infection HospitalAcquired Injuries, including fractures, dislocations, intracranial injury, crushing injury, and burns. See 72 F.R. 47201. viii 72 F.R. 47201. ix Vanessa Fuhrmans, Insurers Stop Paying for Care Linked to Errors, Wall Street Journal, January 15, 2008.MEDICAL NEGLIGENCE LAWSUITS – FEW AND FAR BETWEEN Although much attention has been given to “medical negligence liability crises,” in reality, very few injured patients ever file a medical negligence lawsuit.In 2006, researchers at Harvard University announced theresults of a study showing that most negligence claimsinvolve medical error and serious injury, and concluded“portraits of a malpractice system that is stricken with frivolouslitigation are overblown.”i The researchers found that fewclaims were without merit, and those that were generally didnot receive any money. Most negligence claims weremeritorious, with 97 percent of claims involving medical injuryand 80 percent involving physical injuries resulting in majordisability or death. Few claims where there was not error were ever paid. In fact, researchers found the reverse--non-payment of claims where
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