The NY Times reported on a new report that indicates that lawsuits improve the quality of health care because providers learn from their mistakes. "New evidence, however, contradicts the conventional wisdom that malpractice litigation compromises the patient safety movement’s call for transparency. In fact, the opposite appears to be occurring: the openness and transparency promoted by patient safety advocates appear to be influencing hospitals’ responses to litigation risk."

Lawsuits can also reveal errors that should have been reported but were not — medical providers notoriously underreport errors (although studies have shown that the threat of litigation is not responsible for this underreporting) and lawsuits may fill these gaps.

Experts agree that the best way to reduce medical error is to gather and analyze information about past errors with an eye toward improving future care.  Full disclosure and transparency is the best way to improve safety and prevent injury.  Several factors appear to have overcome resistance to transparency, including widespread laws requiring disclosure to patients.  Hospitals have also found that disclosing errors to patients and offering early settlements reduces the costs and frequency of litigation.

 

What is going on in Wisconsin?  Nursing homes that receive Medicare and Medicaid are required by federal law to report all instances of alleged mistreatment, neglect or abuse, including injuries of unknown origin, to the state health department’s Division of Quality Assurance within 24 hours.  A recent investigation by the Wisconsin Center for Investigative Journalism found facilities do not get punished when they fail to comply with the legal requirement and report incidents.  Most of the time they don’t even investigate the incidents themselves.

Families of residents complain that facilities’ failure to report serious injuries or deaths related to abuse or neglect is not uncommon, and the state health department only learns about incidents after a family member files a complaint.  In some cases, nursing homes file internal reports after a resident injury or death, but do not report the incident to the state, in hopes to cover up the incident.

The number of complaints the state received about Wisconsin nursing homes and assisted living facilities rose from 1,684 in 2000 to 2,562 last year — an increase of more than 50 percent.  At the same time, the Wisconsin health department has cut its staff of full-time nursing home surveyors from 100 in 2002 to 64 in 2012 despite an aging baby-boomer population. A state report found that Wisconsin will have 1.3 million residents over 65 by 2030, compared to about 777,000 residents in 2010.

Meanwhile new laws to help nursing homes avoid accountability prevent juries from hearing about state investigation reports of nursing homes even in criminal cases which means that more neglect or abuse will go undetected and unpunished. Critics say the law removes a useful tool for ferreting out abuse and neglect, noting that attorneys cannot use state inspection reports to affirm allegations or impeach witnesses.

Representative Jon Richards, a Democrat from Milwaukee, says the new law is making it harder for families to win their cases in court. “The bill was passed, nominally, to produce job creation, but I don’t see how letting abusers off the hook creates a single job. That is a real problem.”

 

 

Articles at HaywardWI.com, GreenBayPressGazette, and Wisconsin in Watch.

 

An article from Chico Enterprise Record states that lawsuits have been filed in the deaths of two patients of Lifehouse Cypress Healthcare Center.  The families of the late Donald Dey Sr. and Mary Gustavson are suing for negligence, violations of the health and safety code, and wrongful death.

The first complaint states that on Jan. 12, 2011, Dey was admitted to the hospital for treatment of an infection and kidney disease. After Dey’s condition improved, he was transferred to Lifehouse Cypress for a short stay while they arranged for a home health care nurse to attend to him at home. Dey was admitted as a high risk for falls therefore necessary precautions were needed.  Dey was taken to his room and left alone in his bed.  Less than half an hour later, Dey was found unconscious on the floor with a head injury. He died two days later as a result of swelling of the brain.

In the second case, Gustavson was transferred to Lifehouse Cypress on Feb. 2, 2011, for short-term rehabilitation.  The hospital told the nursing-home staff that Gustavson was to be given doses of morphine sulphate and Xanax "TID."  "TID" is an abbreviation of Latin words that mean "three times a day."  The complaint says the nursing home staff gave Gustavson the two medicines at 9 a.m., 1 p.m. and 5 p.m. daily, while her doctor intended her to have them at eight-hour intervals.  This overmedication caused Gustavson to suffer distress and hospitalized with a diagnosis of morphine overdose.  She died a few days later of  "acute renal failure" caused by the overdose of drugs at the nursing home.

Both of these cases never would have been filed if the facility had an adequate number of qualifed and well-trained staff.  These incidents were certainly preventable.

 

Below is an article by Ezra Klein about the effect of malpractice claims on health care costs.

What the Business Roundtable knows about American health care
By Ezra Klein, The Washington Post

On Sunday, I reported on new data from the International Federation of Health Plans showing that health-care prices are far higher in the United States than anywhere else. An MRI, for instance, costs $1,080 here, but only $280 in France. The disparity is explained, I said, by the fact that in other countries, the government sets the price and providers take it or leave it.

But some readers thought I missed the boat on this one. So let’s go through some of the objections.

Perhaps the most common complaint was that I omitted any mention of the medical malpractice system and administrative costs. As one reader wrote, ”you fail to address that more bureaucracy, more paperwork and persistent unchecked liability are at the root of price hikes.”

Let’s start with medical malpractice. Its direct costs — premiums, payouts, legal fees, etc. — amount to about one-half of 1 percent of total U.S. health-care spending. It’s barely a rounding error.

I specify “direct costs” because there’s a separate question related to “defensive medicine” — tests and treatments doctors prescribe to protect themselves from lawsuits. The problem is it’s very difficult to figure out what is and isn’t defensive medicine. In a world where patients and their families want every treatment that might help and where doctors and hospitals are paid more for every additional treatment they try, there are plenty of incentives pushing doctors to do more. Fear of lawsuits is simply one of many.

In October 2009, in response to a request from Sen. Orrin Hatch (R-Utah), the Congressional Budget Office took a careful look at the evidence on defensive medicine and concluded that aggressive reforms to the medical malpractice system “would reduce total national health care spending by about 0.5 percent.”

Absent in this conversation, however, is the fact that many medical malpractice lawsuits aren’t frivolous, and the United States actually has a higher rate of medical errors than other countries. One of the most common medical errors occurs when surgeons leave a “foreign body” — a sponge, for instance — inside a patient. According to the Organization for Economic Cooperation and Development, such errors are more frequent in the United States than in any other developed country, except Switzerland and New Zealand.

So while I’m for medical malpractice reform — I believe we should have “safe harbor” provisions that protect doctors who follow accepted best practices — it’s not a cure-all for our cost problem, and it can’t be used to hide the very real mistakes that lead to these lawsuits in the first place.

Which brings us to billing and other administrative costs. A 2007 report by the McKinsey Global Institute estimated that high administrative costs accounted for 21 percent of America’s excess spending on health care. Most of those costs were on the private market. Medicare, they found, spends about 3 percent of its budget on administration. But private insurers spend much more. The excess is mostly attributable to “underwriting health risks and sales and marketing — costs that do not arise in the public systems of most [other industrialized] countries.” And private insurers lead to higher administrative costs for doctors and hospitals, too, as they have to negotiate different insurers with different payment processes who are paying different rates. That’s another thing doctors in other countries don’t deal with.

That’s all to say that higher administrative costs are part of why American health care costs so much. But it’s a story that’s essentially identical to the one I wrote: The difference between the United States and other systems is that, in other systems, the government sets prices, and that saves money.

I also got a lot of feedback from doctors who were angry that the article implied they were charging too much. Some noted that they graduate from medical school burdened with hundreds of thousands of dollars in student debt — a problem doctors in other countries don’t deal with. That’s true. They also argued that they work very hard. That’s also true. As one wrote, “maybe a little appreciation and less complaining is in order.”

It’s not complaining to point out that Americans pay more per unit of health care than residents of any other country. It’s just a fact. And here are a few more: As of May 2010, the average general practitioner made an annual salary of $173,000. The average surgeon made $225,000. In January, the New York Times reported that “doctors are more likely than any other profession to be in the top 1 percent — one in five is.” Doctors in the United States also make far, far more than doctors in any other country. Our nurses make more than nurses in other countries, too.

That’s not a value judgment. It’s just another part of the story of American health-care costs, and we have to be honest about it. That said, I worry less about how much money doctors make than how that money is made. Currently, doctors make more by treating more — and there’s little evidence that the extra interventions are providing significant health benefits.That’s why moving from volume-based payments to quality-based payments is so important.
Finally, some readers had a very simple response: Americans pay more because they get more. We have, in the words of many of our politicians, “the best health-care system in the world.” That’s why it costs so much.

On this, I’ll appeal to the Business Roundtable — hardly a hot-bed of known communists. They created a "value index" incorporating “a total of 19 measures of health care spending and health performance measures” — everything from cancer mortality to medical errors to mean cholesterol. “When measured against our competitors’ health value scores, we trail significantly,” the group concluded. “If global economic competition were a 100-meter race, the G-5 group” — Canada, Japan, Germany, Britain and France — “would have a 23-meter ‘head start,’ and the BIC group” — Brazil, India and China — “would have a 46-meter head start on U.S. employers and workers.”

 

We wanted to help explain the study that was published in the New England Journal of Medicine . The study examined medical malpractice claim rates and payments. Only 1 in 5 malpractice claims against insurance companies lead to a settlement or other payout.   This study has proven two points: insurance companies deny far more medical malpractice claims than they pay out and doctors’ perceptions of medical malpractice claims are not in line with their actual risk.  The researchers found that most claims are dropped without payment.

The researchers looked at closed claims made against doctors across 24 specialties and three time periods (1991-1995, 1996-2000 and 2001-2003). The study was conducted by Anupam Jena, Seth Seabury, Darius Lakdawalla and Amitabh Chandra of Harvard and the University of Southern California and was funded by RAND.

 

 

There are also two important points to clarify with the study. First, the researchers and some of the subsequent media coverage use the words “sued” and “claim” interchangeably. This is not accurate. This study only looked at claims filed with one insurance company, not lawsuits filed in courts. Additionally, this study does not evaluate the merit of the claims that are dropped. Studies that have actually looked at the merits of closed claims have found that most negligence claims involve medical error and serious injury.

 

 

Hundreds of thousands of Americans are injured by medical negligence every year without compensation or apology.  Previous research has shown the majority of malpractice claims are valid and meritorious.    The "high cost of litigation" is actually a myth that has been built up by the scare tactics of insurance companies and tort reform groups.

The study does not support a common opinion among doctors and many jurors that most malpractice lawsuits are frivolous.  However, a tiny fraction of the patients harmed by medical mistakes actually file claims because of cost and caps on malpractice awards.

 

Kenny Malone at NPR had a great article on the suspicious deaths at care homes in Florida.  "In Florida, state regulators are failing to protect residents of assisted living facilities, according to an investigation by The Miami Herald and NPR member station WLRN."   Their analysis of records discovered dozens of questionable deaths in assisted living facilities.

Florida is a case study for how the country protects some of its most vulnerable citizens.

Aurora Navas drowned outside a Miami assisted living facility on Jan. 27, 2008, despite its security measures. In her early 80s, doctors diagnosed Aurora with Alzheimer’s disease. Not long afterwards, she moved to Isabel Adult Care III, a six-bed assisted living facility in Southern Miami-Dade County. Isabel Adult Care III with a lake closeby.

 "They had like a little chain-link fence that separated the lake from the property there," her son Alfredo says. "I did see a surveillance camera. You could see the alarm on the door. And there’s always a person there. So it — everything seemed fine."

The police report states on Jan. 27, 2008 at 3:45 a.m., Aurora Navas got out of bed.  She walked past an unconnected surveillance camera. She wandered out a door with an improperly set alarm. She shuffled through an unlocked back gate. Two on-duty caretakers failed to stop her. Police  determined that Aurora Navas drowned in around 18 inches of water.

A year-long investigation by The Miami Herald and WLRN has turned up at least 70 questionable deaths in Florida assisted living facilities. Herald investigative reporter Mike Sallah reads a list of deaths culled from thousands of state documents:

"Angel Joglar, 71; killed when left in a bathtub of scalding water."

"Gladys Horta, 74 years old; strapped so tightly the restraints ripped into her skin, causing a blood clot that killed her."

"Walter Cox, 75 years old; Alzheimer’s patient. Wandered out of a facility for the fourth time; his body was found torn apart by an alligator."

"And in almost all 70 cases, there were few or no consequences for caretakers. Florida, once a national leader in policing assisted living facilities, has fallen behind in enforcement, our investigation shows."

"Our investigation found that the agency is also taking longer to follow up on complaints: In 2009, AHCA took an average of 10 extra days to complete investigations into complaints compared to five years earlier.  And when facilities are found to have deficiencies, the agency rarely punishes them to the full extent of the law."

 

The Orlando Sentinel had an article about Florida Governor Rick Scott’s attempt to protect negligent nursing homes, and protect his campaign contributor’s profits.  Advocates for Florida nursing home residents already are fighting proposed legislation that would severely limit lawsuits against nursing homes for negligence and wrongful death.  Experts state that the legislation will protect owners from being individually named in lawsuits, allowing nursing homes that are sued to shield their assets by setting up shell corporations.

Twin bills in the Florida House of Representatives and Senate aim to cap noneconomic damages — including those for pain and suffering and punitive damages — at $250,000. They also would shield owners from being held individually liable, even if those owners knew there were dangerous conditions at the nursing home and did nothing.  Neither proposal would improve quality of care for residents.

"This is just an outright handout to the nursing-home industry at the expense of some of Florida’s oldest and most vulnerable and most frail citizens," said David Bruns, a spokesman for AARP Florida, which is lobbying heavily against the legislation.

"When you look at the staff report for the bills, nowhere does it say that this is an increasing problem, which leads us to question: What is the need for this legislation?" said Jack McRay, AARP Florida’s advocacy manager. "All this legislation does is create an uneven playing field — one that’s heavily biased in favor of nursing homes."

The U.S. Administration on Aging is currently investigating Governor Rick Scott’s dismissal of Lee, who had led the ombudsman program for the past seven years. In part, officials are looking into allegations that Scott broke federal law by "interfering" with the watchdog program, which is supposed to be independent.

"The timing couldn’t be better for the nursing-home industry," Lee said. "First, they dismantle the ombudsman program, so it takes out the voice that represents the residents before the Legislature. Then they put this legislation out there that limits the ability of consumers to hold the facilities accountable.

All this while profits and fraud increase to record levels.

 

 

The New York Times also had an article about the NEJM’s report discussed yesterday.  The NY Times reported that nursing homes are required to collect masses of data for the Online Survey, Certification and Reporting system — which covers facility characteristics, staffing ratios and the results of state inspections — and the Minimum Data Set assessing residents’ conditions. Dr. Stevenson and his colleagues used these surveys to distinguish the homes with the best records from those with the worst.  This is not a reliable method to determine which facility is good or bad because the data relies heavily on self-reporting, and lax and inconsistent regulatory enforcement.

"Nursing homes aren’t sued all that frequently, it turns out. Plaintiffs filed 4,716 claims against the homes during those years, an average of one every two years, most commonly for injuries from falls and bedsores. The data don’t indicate whether these claims were warranted but do show that 61 percent resulted in a payment — typically, they’re settled out of court — and that the payment averaged nearly $200,000."

 

Cracked.com debunked six mythical "frivolous lawsuits".  See full article here.

Great article especially the discussion of the McDonalds coffee burn case.  See blog post from Newnan Pratlaw explaining the Stella Liebeck v. McDonald’s case.

Stella Liebeck of Albuquerque, New Mexico, was in the passenger seat of her grandson’s car when she was severely burned by McDonalds’ coffee inFebruary 1992.  Liebeck, 79 at the time, ordered coffee that was served in a styrofoam cup at the drive through window of a local McDonalds.

After receiving the order, the grandson pulled his car forward and stopped momentarily so that Liebeck could add cream and sugar to her coffee. (Critics of civil justice, who have pounced on this case, often charge that Liebeck was driving the car or that the vehicle was in motion when she spilled the coffee; neither is true.)  Liebeck placed the cup between her knees and attempted to remove the plastic lid from the cup. As she removed the lid, the entire contents of the cup spilled into her lap.

The sweatpants Liebeck was wearing absorbed the coffee and held it next to her skin. A vascular surgeon determined that Liebeck suffered full thickness burns (or third-degree burns) over 6 percent of her body, including her inner thighs, perineum, buttocks, and genital and groin areas. She was hospitalized for eight days, during which time she underwent skin grafting. Liebeck, who also underwent debridement treatments, sought to settle her claim for $20,000, but McDonalds refused.

During discovery, McDonalds produced documents showing more than 700 claims by people burned by its coffee between 1982 and 1992. Some claims involved third-degree burns substantially similar to Liebecks. This history documented McDonalds’ knowledge about the extent and nature of this hazard. McDonalds also said during discovery that, based on a consultants advice, it held its coffee at between 180 and 190 degrees fahrenheit to maintain optimum taste. He admitted that he had not evaluated the safety ramifications at this temperature. Other establishments sell coffee at substantially lower temperatures, and coffee served at home is generally 135 to 140 degrees.

Further, McDonalds’ quality assurance manager testified that the company actively enforces a requirement that coffee be held in the pot at 185 degrees, plus or minus five degrees. He also testified that a burn hazard exists with any food substance served at 140 degrees or above, and that McDonalds coffee, at the temperature at which it was poured into styrofoam cups, was not fit for consumption because it would burn the mouth and throat. The quality assurance manager admitted that burns would occur, but testified that McDonalds had no intention of reducing the “holding temperature” of its coffee.

Plaintiffs’ expert, a scholar in thermodynamics applied to human skin burns, testified that liquids, at 180 degrees, will cause a full thickness burn to human skin in two to seven seconds. Other testimony showed that as the temperature decreases toward 155 degrees, the extent of the burn relative to that temperature decreases exponentially. Thus, if Liebeck’s spill had involved coffee at 155 degrees, the liquid would have cooled and given her time to avoid a serious burn. McDonalds asserted that customers buy coffee on their way to work or home, intending to consume it there. However, the companys own research showed that customers intend to consume the coffee immediately while driving. McDonalds also argued that consumers know coffee is hot and that its customers want it that way. The company admitted its customers were unaware that they could suffer third degree burns from the coffee and that a statement on the side of the cup was not a “warning” but a “reminder” since the location of the writing would not warn customers of the hazard.

The jury awarded Liebeck $200,000 in compensatory damages. This amount was reduced to $160,000 because the jury found Liebeck 20 percent at fault in the spill. The jury also awarded Liebeck $2.7 million in punitive damages, which equals about two days of McDonalds’ coffee sales. Post-verdict investigation found that the temperature of coffee at the local Albuquerque McDonalds had dropped to 158 degrees fahrenheit. The trial court subsequently reduced the punitive award to $480,000 — or three times compensatory damages — even though the judge called McDonalds’ conduct reckless, callous and willful.

No one will ever know the final ending to this case. The parties eventually entered into a secret settlement which has never been revealed to the public, despite the fact that this was a public case, litigated in public and subjected to extensive media reporting. Such secret settlements, after public trials, should not be condoned. —– excerpted from ATLA fact sheet. © 1995

 

In July 2010, a Humboldt County (California) jury imposed a $671 million verdict after finding that nursing home chain Skilled Healthcare had failed to meet state staffing requirements. After the verdict, attorneys from both sides negotiated a reasonable agreement calling for Skilled Healthcare to pay $50 million to settle the claims and change staffing policy.

Several attorneys involved in the case against Skilled Healthcare are bringing similar complaints against other nursing homes over understaffing.

Kathryn Stebner — a San Francisco attorney who is working on the new cases — said lawyers have used state data to identify nursing home chains and facilities that provide inadequate staffing levels.

The new cases include:

Hazel Walsh v. Kindred Healthcare, filed Nov. 23, 2010 in San Francisco on behalf of a resident at San Francisco’s Golden Gate Healthcare Center;

Phyllis Wehlage v. Evergreen California Healthcare, filed Nov. 15, 2010 in Sonoma County on behalf of a resident at Evergreen Lakeport Healthcare in Lake County;

Valentine v. Thekkek Health Services, filed Nov. 12, 2010 in Alameda County on behalf of a resident at Gateway Care and Rehabilitation in Hayward; and

Maria Hernandez v. Beverly Healthcare California, filed Nov. 10, 2010 in San Francisco on behalf of two residents at Golden LivingCenter facilities in Bakersfield and Petaluma.

Another lawsuit working its way through the courts targets understaffing at nursing home chain Covenant Care. The case was filed in April 2010 in Sacramento County on behalf of a resident at Emerald Gardens Nursing Center in Sacramento.

Each case alleges that nursing homes are providing too few staff to meet resident needs.