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Bush Should Fight Medical Errors, Not Just Lawyers

President Bush may be right to push medical malpractice reform to keep doctors from walking off their jobs, but should also address a companion crisis — health care quality.

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Bush repeatedly attacks “junk lawsuits” — and the trial lawyers who file them — but he has taken few steps to prevent the errors and deaths that cause victims to sue in the first place.

One particular medical horror story — the unnecessary double mastectomy undergone last year in Minnesota by 47-year-old Navy veteran Linda McDougal after a misdiagnosis of breast cancer — is being seized upon by trial lawyers to counter Bush’s proposed limits on malpractice awards.

But hundreds of thousands of other medical errors occur annually. In 2000, the Institute of Medicine, an arm of the National Academy of Sciences, estimated that errors may kill between 40,000 and 100,000 Americans per year.

And a survey last year by the Harvard School of Public Health and the Kaiser Family Foundation found that 35 percent of doctors reported that they or their families had experienced medical errors in the course of being treated, with most saying that “serious health consequences” resulted.

The Institute of Medicine called for a $1 billion federal investment in information technology and other steps to establish “best practices” among providers to reduce errors.

Bush not only hasn’t recommended any such spending, but last year he also called for a 16 percent cut in the budget of the Agency for Healthcare Research and Quality, which does outcomes research and promotes patient safety. And Bush’s forthcoming 2004 budget reportedly calls for another cut.

Former Treasury Secretary Paul O’Neill, who is now working to improve health quality in Pennsylvania, told me he pushed hard in the administration to establish a nationally standardized data base for medical records — controlled by patients — and for a reimbursement system based on patient outcomes, not time in the hospital or procedures performed.

He got nowhere, he said in a phone interview. “I was Treasury Secretary. I had no standing on health matters,” even though he argued that “up to 50 percent of the national resources we devote to health care is wasted.”

The Bush administration argues that huge sums of money can be saved through caps on malpractice lawsuit awards — $60 billion to $108 billion a year in insurance costs for tests and procedures ordered only because doctors are practicing “defensive medicine.”

Theoretically, some of such savings could be used to improve health quality by computerizing records and ceasing to overwork medical residents, but the administration hasn’t called for it.

Bush’s only proposal on the quality front — undoubtedly a useful one — is to permit doctors and other health workers to discuss their mistakes and improve procedures without fear that their words will be used against them in lawsuits.

White House officials say that a proposal on information technology is under study, but it didn’t have enough priority to make it into Bush’s State of the Union address.

Meantime, the administration and tort reform advocates in Congress say that recent well-publicized liability crises in West Virginia, Pennsylvania, Nevada and Florida will help their cause this year.

With malpractice insurance premiums doubling and tripling in some states, doctors have quit working or have moved away, trauma centers and maternity wards have closed and hospitals have quit performing neurosurgery and other high-risk procedures.

Senate Majority Whip Mitch McConnell (R-Ky.), who sponsored a medical malpractice reform bill last year that received only 42 votes, said that “without naming names, I’ve talked to a number of Senators who are rethinking.”

“This is not just a discussion of principle any more,” he said. “It’s a real crisis. This is on the evening news. This is something people are talking about around the kitchen table.”

He said that, as a result, getting the necessary 60 votes to defeat a Democrat-led filibuster “is not out of the question.” Last year, all 50 Democrats and six Republicans voted against McConnell’s measure.

Liability reform advocates are encouraged by the decision of Sen. Dianne Feinstein (D-Calif.) to back a national law equivalent to California’s, which limits jury awards for noneconomic damages (“pain and suffering”) to $250,000 and allows for punitive damages only in cases of malice and fraud.

The malpractice fight is intensely political. Lawyers and their lobby, the Association of Trial Lawyers of America, contribute overwhelmingly to Democrats, and the insurance industry to Republicans.

The American Medical Association, which sided with ATLA to fight for patients’ rights legislation against insurers, has switched and has made malpractice reform its top issue this year.

ATLA contends that malpractice insurance rates are rising because insurance companies are trying to recoup losses in the stock market.

But this claim is refuted by the Physician Insurers Association of America, whose members insure most doctors, which says that only 10 percent of companies’ revenues can be invested in stocks.

Moreover, while the stock market is national, malpractice insurance premiums vary widely by state. An obstetrician in Los Angeles pays $54,600 per year, according to the PIAA, and $201,000 in Miami, for example.

So, there’s a good case to be made for Bush’s malpractice reforms. But there’s also a compelling need for measures to ensure that mistakes like the one damaging Linda McDougal’s life won’t happen.

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