DC Medical Malpractice & Patient Safety Blog

The Obama administration’s effort at health-care reform—known as the Affordable Care Act, or ACA—has an image problem. Virtually every poll asking Americans what they think of its provisions demonstrates not only widespread disapproval, but widespread ignorance.

Some pundits attribute our collective misunderstanding to the administration’s inept efforts to publicize the program’s features, some attribute it to GOP mischaracterizations of its features and some say Americans just aren’t paying attention.

One recent poll, however, was categoric in what Americans like about the ACA: the demand that health-care plans clearly communicate their benefits, coverage and exclusions. The popularity of what seems so simple—transparency—underlies the questionable instincts so common among U.S. commercial interests, whether they’re large financial institutions, Big Pharma or insurance underwriters: You can fatten your bottom line by making consumer safety secondary to obscuring the facts about your product.

The monthly Kaiser Health Tracking Poll examines public opinion and knowledge about specific provisions of the ACA. In November, the “runaway” favorite element of the reform plan was the transparency requirement for health plans. Six in 10 Americans gave this provision a "very favorable" rating, the only such element of the ACA to score that high among more than half the public. Eighty-four in 100 ranked this provision "favorable."

Overall, the plan garnered an "unfavorable" review from 44 in 100 respondents; 37 in 100 gave it a "favorable" rating.

Several better-known aspects of the ACA generated these responses:

• preventing insurers from denying people coverage if they have pre-existing conditions: "very favorable," 47 in 100; "favorable," 67 in 100;


• closing the Medicare doughnut hole for drug coverage: "very favorable," 46 in 100; "favorable," 74 in 100;


• providing tax credits to individuals and small businesses to help pay for coverage: "very favorable," 44 in 100 and 45 in 100, respectively; "favorable," 75 and 80 in 100, respectively;


• the individual mandate (the requirement that everyone purchase health insurance coverage that is subject to Supreme Court review): "very unfavorable," 43 in 100.

It’s troubling that more than half—56 in 100 people—believe the ACA includes a new government-run insurance plan to be offered along with private plans (it doesn’t), and that 35 in 100 believe the law allows a government panel to make decisions about end-of-life care for people on Medicare—the so -called “death panel.” That, too, is fiction.

In reviewing the poll results, an analyst with Kaiser, which has no relationship to the health-care company of the same name, opined, “It is no huge surprise that people are confused by their health benefits. And, unlike many elements of the health reform law, there is no apparent downside to the public from requiring health plans to be more up front about what they do and do not cover; although employers and insurers have objected to the rule as a costly and unnecessary new regulatory burden. What is a surprise, though, is that people feel so lost in the health insurance system that they chose a requirement that insurance companies explain their benefits in plain language as the most popular element of the giant health reform law, and by such a wide margin over the many others we asked about.

“But, our polling shows people don’t know much about its more consumer friendly provisions which are popular even across partisan lines. As long as that remains the case, people will not perceive the ACA as part of the solution to their everyday problems and public opinion will remain split along the familiar partisan divide.”

Another clarion call to simplify a program so critical to the welfare of so many Americans was sounded earlier this month in a report published online by Health Affairs. It concluded that when faced with numerous Medicare Advantage plans, older Americans were less likely to enroll than if their choice of plans was more limited. It also found that seniors whose mental faculties were impaired were less likely to enroll than others when the Advantage plans offered more generous benefits.

Medicare Advantage plans, a form of supplemental insurance administered by private companies, pay providers more for treating Medicare beneficiaries. They frequently offer more generous drug benefits than those that are available in Medicare Part D plans.

The findings suggest that many Medicare beneficiaries are unable to access or process information, so if they’re faced with numerous, complicated insurance plans, they make enrollment decisions that aren’t in their best interests.

The three-year study looked at 21,815 enrollment decisions made by 6,672 participants. In comparing enrollment decisions among participants with different mental capabilities and plan offerings, if 15 or fewer plans were available, there was usually an increase in Medicare Advantage enrollment. When the number of options surpassed 30, as it did in one-quarter of U.S. counties, enrollment in the program decreased.

Never underestimate the doggedness of an insurance company in guarding its own treasury from malpractice claimants. Even when the patient wins, you can often count on a multi-year battle in the appeals courts to collect what you are owed.

For our firm's client Sharon Burke, an eleven-year odyssey has finally ended in her favor, after a second trip to the District of Columbia Court of Appeals.

Ms. Burke's malpractice case concerned a misreading of her MRI scan that caused a fateful delay in finding a problem in the arteries feeding blood to her brain. The delay led to a disabling stroke for her. Read more details here.

On the first go-round, the Court of Appeals denied the radiologists' motion for a new trial. You can read about that decision on our firm's website about verdicts, here.

But that decision came three years after we won the verdict at trial. So on Ms. Burke's behalf, we wanted the interest that had accrued on the verdict during that 3-year span.

That started round 2 of the appellate war. We calculated the interest owed based on the fluctuating interest rate provided by the District of Columbia statute. The rate varies with the rate of interest published by the Internal Revenue Service for underpayment of taxes, which in turn is pegged to the interest rate on U.S. Treasury bonds. That's a fair system, because it gives the winning party a rough approximation of the market interest rate on the money owed while the defendant holds onto the money during the appeal.

Between our verdict in March 2004 until the final judgment in March 2007, the rate had climbed from 3 percent to 6 percent. So we asked for interest for each quarter based on the interest rate then in effect. That came to a little under $500,000.

The insurance company really liked the 3 percent rate that was in effect when the verdict first came down. That saved it a little under $200,000 from what we calculated it owed. So it asked the trial judge to order the lower interest rate. To our surprise, the trial judge granted the insurer's request. The judge had "discretion" to change the interest rate downward, but we appealed her decision, since we said there was no reason to penalize Ms. Burke with a sub-market interest rate on the money the radiologists' insurer owed to her.

This week, four years later, the District of Columbia Court of Appeals agreed with our argument. It said the trial judge had abused her discretion in lowering the interest. The court noted the important public policy behind "post-judgment" interest. The idea is to "make the plaintiff whole" -- that is, when you win a lawsuit and the defendant owes you money, if the defendant wants to hold onto the money while it appeals, in fairness, you should get something close to what the market would have paid by way of interest.

You can read the decision on our website.

Now Sharon Burke will finally get paid everything she is owed. It won't restore her brain health, but it will help the dignity and quality of her life.

Physician groups and health insurers often blame excessive malpractice settlements for the high rates that doctors have to pay to obtain malpractice liability insurance. But a recent analysis indicates that regional differences may play an even more significant role in determining malpractice insurance rates.

According to a recent analysis by Excellus BlueCross BlueShield, a BC/BS carrier in upstate New York, medical malpractice premiums for physicians in different regions of the state can vary as much as five times the amount paid, and the difference can exceed $100,000 for some specialties. In particular, malpractice rates for upstate New York physicians are considerably less than those in downstate regions and are similar to the amounts paid by physicians in states that report the lowest premium rates in the country.

The analysis, entitled “The Facts About New York State Medical Malpractice Coverage Premiums," found that the standard malpractice premium for an internist in Buffalo, Syracuse, Binghamton and Utica ($9,874) is significantly lower than for an internist practicing on Long Island ($35,028). A general surgeon's premium rate in those same upstate areas is $32,663, contrasted with a Long Island general surgeon's rate of $115,872, while obstetricians/gynecologists in many upstate regions may pay $52,650, whereas their Long Island counterparts pay a standard rate of $186,772.

The data presented in the fact sheet for New York state physicians is based on current standard premium rates of the Medical Liability Mutual Insurance Co., which insures most physicians in the state.

Source: The Ithaca Journal

You can obtain a free copy of “The Facts About New York State Medical Malpractice Coverage Premiums” here.

It’s bad enough when a treatment goes so wrong a patient has to sue to get financial compensation for the physician’s malpractice, but what if the physician has no liability insurance and the judgment can’t be collected? For Georgia residents, this no longer poses a problem, because under a new law that may be the first of its kind in the U.S., physicians must disclose whether or not they are covered by medical liability insurance.

According to the law, which was signed by Georgia Governor Nathan Deal last month, physicians are required to inform the Georgia Composite Medical Board if they are insured. The board will make the information available on its website as part of a physician's public profile. In addition, doctors also must disclose whether they are covered by insurance when asked by patients. If the physician declines to inform his patients, the result could be disciplinary action by the board.

"The patient has a right to know if a physician carries malpractice insurance," says Rep. Ben Watson, MD, who sponsored the measure. "This is part of how a patient can judge a physician."

The Medical Association of Georgia, which represents physicians in Georgia, supported the bill. The vast majority of Georgia’s nearly 18,000 physicians have liability insurance.

The Georgia law may be the first of its kind to add "insurance coverage" to the list of public disclosures required of physicians. Last month, the Illinois Assembly passed a similar bill, but it has yet to be signed into law.

Source: American Medical News

Malpractice claims are not out of control and a damages cap would not result in big insurance savings for doctors and hospitals, according to a new study of malpractice insurance in New York state. The study comes as lawmakers across the nation are under pressure to enact tight restrictions on the rights of medical malpractice patients.

According to Joanne Doroshow, Executive Director of the Center for Justice & Democracy and co-founder of Americans for Insurance Reform, which commissioned the report, “The notion that either claims or premiums in New York State are out of control is the most sensationalized fiction driving these horrendous medical malpractice proposals. AIR’s study refutes the principal basis for the argument that a $250,000 ‘cap’ on damages for injured patients will result in massive insurance ‘savings’ for doctors and hospitals.”

Doroshow adds that the only public justification for the push to cap malpractice damages “is a one-line sentence in the Governor’s Medicaid Redesign Team’s Proposal 131, referencing Milliman," an insurance industry consulting firm that she says is discredited.

The AIR study, called “Medical Liability and Malpractice Insurance in New York State,” examines over 30 years of New York insurance data to show that New York’s insurance rate increases and decreases are not driven by the legal system or jury verdicts, and that the causes of and solutions to any insurance problems that exist here lie not with the legal system (i.e., capping damages) but with the business practices of the insurance industry.

The analysis was done by J. Robert Hunter, AIR co-founder, director of insurance for the Consumer Federation of America, and formerly the Commissioner of Insurance for the State of Texas and Federal Insurance Administrator under Presidents Carter and Ford.

The AIR study also found that:

Inflation-adjusted payouts per doctor in New York State have been stable, have failed to increase in recent years, and are comparable to what they were in the early 1980s.

Inflation-adjusted premiums per doctor in New York State are among the lowest they have been in over 30 years, comparable to what they were in the mid-1970s.

The study concluded that there is absolutely no reason to further limit the liability of doctors and hospitals, who already benefit from numerous liability protections in New York State for their negligence.

Source: Americans for Insurance Reform

The complete study can be found here.

Half of all graduating medical residents or fellows trained in Illinois are leaving the state to practice elsewhere, according to a new study, which seems to indicate that as many as 50% of the state’s medical school graduates are turned off by the “toxic” malpractice environment. Critics, however, say the study is just another attempt by the health care industry to blame its problems on malpractice claims.

The study, which was funded by the Illinois Hospital Association and the Illinois State Medical Society, asked 561 medical students where they intended to practice after graduation and why. Students who said they planned to leave Illinois cited salary, opportunities to work in their specialty and proximity to family as the most important factors driving their decision. The survey also found that for nearly 70 percent of these students, their perception of Illinois' liability environment -- based on the state's high medical malpractice insurance premiums compared to its neighbors, as well as the Illinois Supreme Court's recent decision to remove caps on damages for medical lawsuits -- also played a role.

But are malpractice claims really driving new physicians from Illinois?. Patrick Salvi, a Chicago-based malpractice attorney, doesn’t think so. “There could be many reasons to explain an impending physician shortage in Illinois, including a general population shift, so it's utterly wrong to say it's solely because of medical malpractice claims,” Salvi says. “The fact is that medical negligence litigation comprises a very small fraction of costs within the health care industry, and those costs would not have been accrued if a physician had not made a terrible mistake that led to the injury or death of a patient.”

Salvi also points to a report by the American Association for Justice which, using data from the American Medical Association, showed that the number of physicians per 100,000 residents was 21 percent higher in states without caps on medical liability damages than in states with caps.

Source: Chicago Sun-Times

You can view or download a PDF of the complete Northwestern Report here.

Go here for more on the critique of the Northwestern report's conclusions.

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Deaths from preventable medical error kill as many people in the nation's capital as guns, and far more than motor vehicle crashes, according to a new report from the D.C. Department of Health.

The report, the first of its kind in the District of Columbia, analyzed the 5,168 total deaths reported to health officials in 2007. It determined that fully half of the deaths could have been prevented. Among the leading causes of preventable death:

1. Tobacco: 860 deaths
2. Poor diet and physical inactivity: 780 deaths
3. Infections (not counting HIV): 240
4. Alcohol abuse: 150
5. Firearms: 140
6. Medical errors: 140
7. Poisons (and pollution): 110 deaths

DC Motor vehicle deaths were a distant 10th place on the list of leading preventable causes of death, with 30 deaths in 2007, according to the Health Department.

Another interesting number: The Department estimates that as many people died from lack of health insurance -- which discourages access to medical care -- as motor vehicles -- 30 people in 2007.

The estimate of deaths from lack of health insurance is based on the number of uninsured people in D.C. and uses methodology from a report by the Kaiser Family Foundation. The estimate of deaths from medical error was made by applying D.C. population numbers to estimates that were made in 2000 by the Institute of Medicine, part of the National Academy of Sciences.

It ought to be so easy. Congress waves its magic wand, makes it illegal for health insurers to discriminate against sick people by charging them higher premiums or excluding their "pre-existing conditions," and voila, there you have it -- reform that everyone wants. But here's the downside, and here is why health insurance reform is not easy without tough and unpopular mandates on healthy people.

If insurance discrimination against the sick was outlawed without any requirement that everyone buy health insurance, then many people would take a chance and "go bare" of insurance while they're in good health. After all, they couldn't be punished financially once they got sick and really needed the coverage. More and more, the only people buying insurance would be the ones with big medical bills. And without the premium money from the healthy to subsidize the bills for the sick, the insurance companies would have to raise rates, and this would discourage more people from buying insurance, and soon we would have what economists call "the death spiral" of ever higher premiums and ever fewer insureds.

So no health reform has ever succeeded without a wide base of financing where the healthy and the sick alike contribute to the money pool, whether through insurance premiums or taxes.

Uwe Reinhardt, the Princeton health economist, explains this in a recent "economix" blog post in the New York Times.

A new study documents how lack of health insurance can be fatal to sick children -- not because they are denied care once they get to the hospital, but because they get into the care system too late.

Researchers at Johns Hopkins Children’s Center crunched the numbers of two decades' worth of children's hospitalizations -- more than 23 million hospital stays. They found that compared with insured children, uninsured children faced a 60 percent increased risk of dying.

The authors estimate at least 1,000 hospitalized children die each year for lack of insurance.

As quoted in a New York Times account of the study, which was published in The Journal of Public Health, one co-author said:

“If you take two kids from the same demographic background — the same race, same gender, same neighborhood income level and same number of co-morbidities or other illnesses — the kid without insurance is 60 percent more likely to die in the hospital than the kid in the bed right next to him or her who is insured,” said David C. Chang, co-director of the pediatric surgery outcomes group at the children’s center.

The kids without insurance tended to arrive at the hospital through the emergency room, and tended to die in less than a day after admission, suggesting they were sicker than insured children, according to the authors.

Dr. Peter Pronovost, another co-author and a patient safety advocate at Hopkins, said:

“The striking thing is that children don’t often die. This study provides further evidence that the need to insure everyone is a moral issue, not just an economic one.”

More and more doctors and patients are recognizing the link between affordability of medical care and safety. One problem that plagues fee-for-service medicine is that doctors are rewarded financially for ordering excessive tests and treatments, which are both dangerous and wasteful.

Geoff Berg, an internist in Rhode Island, put it this way in a letter to the editor in the New York Times:

"The problem with fee-for-service is not merely that it pays providers to provide service; it pays them to create service as well. It is this almost limitless ability of doctors to create service that makes our per capita health care costs twice that of any other developed country. If physicians were salaried employees with modest incentives for productivity and outcomes, we could, in very short order, have affordable health care for all."

Electronic medical records, if properly used to communicate key information among doctors and with the patient, also could help cut wasteful and pain-inflicting treatments, as letter writer Margie Parko wrote in the Times about her mother-in-law's experiences in the last 18 months of her life.

It's always intimidating to undergo an MRI scan or CT scan. The machines are loud and enormous and seem to swallow your body. For all the trouble and expense, patients deserve the very latest scanning equipment and should have their images read by only the most highly qualified doctors. Alas, there is a quiet scandal in the $100 billion/year medical imaging industry. Patients cannot count on the best unless they insist on it.

As quoted by Gina Kolata in the New York Times, radiology leaders say, in the words of one: "The system is just totally, totally broken." That from Dr. Vijay Rao, chair of radiology at Thomas Jefferson University Hospital in Philadelphia. One big problem is that insurers pay standard rates for scans, even if a scan on a 10-year-old machine produces a blurry image and results in patients undergoing unnecessary surgery or missing a diagnosis. There is also no financial incentive for scanning facilities to have the images interpreted by sub-specialists with more expertise in the body part being studied. But there is a big financial incentive for doctors to own their own scanning equipment, and that results in many unnecessary referrals for scans when the doctor's judgment about the patient's needs is clouded by financial conflicts of interest.

Wise patients should ask pointed questions before submitting to any imaging scan. Here is a list, adapted from Patrick Malone's new book, The Life You Save: Nine Steps to Finding the Best Medical Care -- and Avoiding the Worst, available at Amazon.

1. Is the scanning machine the latest generational available? If not, is there another facility nearby that has the latest generation? (In MRI scans for example, the stronger magnets on newer machines make for crisper images.)

2. Does the doctor who wants me to have this scan own the scanning equipment or the scanning facility? (If so, get an opinion from another doctor with no financial interest about whether you need the scan at this facility.)

3. Who will interpret the images? Is that doctor a sub-specialist in what's being studied? (Examples of radiology sub-specialties include musculo-skeletal, neuroradiology (brain and spine), abdominal and chest.) If not, can we get a second reading from a sub-specialist?

4. Is the scanning facility accredited by the American College of Radiology? (This ensures that basic standards are met, such as the technologist who runs the scanning machine being certified and the machine being regularly inspected for proper functioning.)

Involved patients will also want to sit down with the doctor and look at the images together. You will notice how much more detail comes out when the scan has been done on an up-to-date machine by well-trained personnel. In the New York Times article, you can see in a knee scan how the ligament is blurry on the left-side image but comes out clearly in the image on the right -- a slanting striated structure that connects the middle of the top of the tibia to the back of the femur.

A new report from George Mason University of Virginia and the Urban Institute finds that the uninsured pay $30 billion each year out of pocket for health care costs.

Others who provide for the uninsured are the government, physicians who donate time and forgo profits, and private charity.

The lead researcher points out that failure to cover the uninsured in the short term would only lead to greater costs for society in the long term.

From the article:

On average, an uninsured American pays $583 out of pocket toward average annual medical costs of $1,686 per person, Hadley's team reported in the journal Health Affairs. The annual medical costs of Americans with private insurance average far more -- $3,915, with $681, or 17 percent, paid out of pocket, the report found.

"The uninsured receive a lot less care than the insured, and they pay a greater percentage of it out of pocket. Contrary to popular myth, they are not all free riders," Hadley said.

One big problem that has been recognized for years with lack of universal health coverage is that people without good insurance sometimes put off going to the doctor or hospital until they are much sicker and need much more intense treatment.

The Toledo Blade has a good article with stories from patients whose crucial treatments, ordered by doctors, have been denied or delayed by insurance companies.

It begins with the harrowing story of Randy Steele, who died after the kidney-liver transplant that could have saved his life was stalled by his insurer.

Even if patients do not die as a result of these repeated denials and delays, they often end up unable to follow their doctors' instructions and their health suffers seriously as a result.

The Blade conducted interviews with 100 physicians and did a survey of 920, which you can read more about by clicking the above link. The results of both the interviews and the survey show that doctors believe that insurers countermanding or stalling their orders is creating a crisis in health care. Of the survey's 920 respondents, more than 99 percent said that insurers had interfered in their medical decision-making.

Clearly doctors are more qualified to make medical decisions than insurance companies. Any health care system that allows a bureaucrat working for an insurance company to make these calls will inevitably end up creating the tragedies that this article describes.

Unsurprisingly, there are wide global disparities in survival rates of cancer patients. This is partly because of the relative wealth of different countries. However, there are huge disparities within the United States as well:

In the United States, the lowest survival rates are in New York City, except for rectal cancer in women, where Wyoming scores worse. The best survival rate for cancer in the United States is in Hawaii, the researchers found.

Idaho also has a high survival rate for rectal cancer, and Seattle has the highest survival rate for prostate cancer.

But, there's a big disparity in cancer survival rates between whites and blacks in the United States, and it favors whites. The differences range from 7 percent for prostate cancer to 14 percent for breast cancer. This disparity is most likely due to differences in the stage of cancer when it is diagnosed, the researchers said.

We have discussed the impact of race and region on health care quality before on this blog. Unfortunately, not everyone can count on getting the appropriate kind of service from their health care providers depending on their circumstances, as this new study re-affirms.

In California, regulators ordered insurers to reinstate the policies of 26 patients who allegedly lied on their applications.

As Michelle Andrews notes in the linked article, insurers will often claim that a patient "lied" about something that was either an honest mistake or the result of the insurer using strange definitions. For instance:

...one woman I spoke with on this topic had answered "no" when asked if she'd been treated for cancer in the past 10 years. Later her policy was yanked because the insurer claimed that regular blood work she had to ensure her earlier cancer hadn't returned constituted cancer treatment.

One might guess that this phenomenon occurs in other states as well. Andrews comments that patient advocates suspect it does.There is certainly no evidence indicating that it is confined to California.