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Congress Daily
03-10-2005
Spring often comes early to Washington. When it comes to the medical malpractice debate, however, it seems that the warm glow of compromise is in the air everywhere this year except the nation's capital.
In fact, when it comes to what to do about skyrocketing medical malpractice premiums for physicians, it seems more like Groundhog Day than spring on Capitol Hill.
Since 1995, the House has passed legislation to cap non-economic damages no fewer than eight times -- twice in the last Congress alone.
These damages, for pain and suffering, would be capped under the House at $250,000 and attorney fees would be limited, among other changes.
The Senate has just as steadfastly refused to go along, and even with Republican gains in last year's elections, the Senate in the 109th Congress still appears more than half a dozen votes short of the 60 that would be needed to break a threatened filibuster.
So the upper chamber's sponsor, Sen. John Ensign, R-Nev., was asked last month when he reintroduced his malpractice bill why he kept pushing the same measure. "The bottom line is we're going to continue to push this because the problem is not going away," he replied.
Precisely because the problem seems not to be going away, however, other groups are starting to pursue other possible remedies.
Take the Joint Commission on Accreditation of Health Care Organizations, for example. JCAHO -- pronounced JAY-co -- is best known as the nation's hospital inspection agency. In recent years, though, it has expanded its portfolio and refocused its efforts on improving the quality of health care.
According to a white paper issued by the group last month, quality is not something the current medical malpractice system is set up to produce, and it is broken in a way that adding non-economic damage caps will not fix.
"There is, in fact, a fundamental dissonance between the medical liability system and the patient safety movement," said the paper. "The latter depends on the transparency of information on which to base improvement; the former drives such information underground."
Verdicts in malpractice cases often come too late to prevent similar types of medical errors, the paper said. Cases that are settled relatively quickly, moreover, "are typically cloaked by 'gag clauses' that require complainants' silence, and squelch efforts to elucidate and ameliorate the factors that lead to injury." In other words, mistakes are never aired in public and thus cannot be avoided by others.
The JCAHO panel that produced the report recommended that any redesign of the medical liability system "assure appropriate compensation for all injured patients, while also encouraging health care providers and practitioners to surface errors, learn from mistakes in the design and performance of care processes, and take action to ensure that adverse events do not recur."
That is exactly the goal of the Sorry Works coalition, a fledgling group that is trying to bring together physicians, lawyers, insurance executives and patient advocates in an effort to find "a middle ground solution everyone can agree on," said Doug Wojcieszak, a public relations professional who founded the group after his family had to sue to discover the error that resulted in the death of his brother. "There's so much mudslinging in the medical malpractice debate," said Wojcieszak. "This is something both sides can agree on."
The concept that Sorry Works is pushing goes beyond existing laws in some states that make physician apologies for errors inadmissible in malpractice cases. The idea is for health professionals to study every medical mishap resulting in injury or death, apologize if a mistake was made, offer to negotiate a fair settlement and take steps to ensure that similar mistakes do not occur in the future.
"'I'm sorry' is exactly what patients want to hear from a physician when a medical error occurs," said Sorry Works board member Michael Woods, a physician and consultant who sells patient satisfaction survey kits to other physicians to help them better communicate with patients.
Woods said he got involved in the disclosure movement after he was sued by a patient who had suffered a serious complication and his malpractice insurer "told me to break off all communication with the patient and specifically not to apologize."
Those behind the Sorry Works concept said it would not only help patients and physicians and improve quality but also could lower malpractice premiums, they said, by making costs more predictable.
That has already been shown in some test cases, notably at the Veterans Affairs hospital in Lexington, Ky., where such a program has been in place since 1987. "Patients are treated in a respectful way that does not cause anger," said Steve Kraman, the hospital's former chief of staff. As a result, he said, fewer sue.
By Julie Rovner
CongressDailyAM
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