Archive for the ‘Trial by jury’ Category

Patient safety lost in health care debate

Lots of noise going back and forth about health care reform, but one issue, which is the elephant in the room, is getting little coverage.

Back in 1999, the Institute of Medicine issued this report on the horrifying death toll caused by preventable medical errors. “Horrifying” isn’t over the top. We’re talking about 44,000-98,000 hospital deaths per year in U.S. hospitals caused by preventable medical errors. You would think those kinds of numbers would lead to instant action and a reduction, but the problem has gotten worse.

Kudos and appreciation to the Hearst news organization for an update. Unfortunately, it shows that 200,000 per year die from preventable medical errors. States, including Oregon,  have refused to pass mandatory hospital safety reporting laws.  Apparently, no one thinks that mandatory reporting of  preventable medical death information would change hospital practices.

The Oregonian ran with the story in its Saturday edition, but they somehow decided to leave it off of their website. That’s a shame, as they did a detailed local breakout.

So now we’re talking about health care reform. But for all the heat and light and jabber about government programs, single payers, “death panels,” and the like, no one is talking about reducing preventable medical harm.

So the better question is what about that elephant?

Why do we allow people seeking health care reform to demand limits on lawsuits when they refuse to talk about quality of care? With this level of deaths, why do we tolerate people complaining about “defensive medicine?”

If the medical and insurance industries want to hide errors, the one thing that must remain untouched is the right to trial by jury. Otherwise, we simply have an elephant in the room that will stomp another 200,000 people next year with no consequences. We need to be able to hold the medical and insurance industries accountable. And if the government will take no action, the jury is the next best thing.

Next time someone complains about malpractice cases, the practice of defensive medicine or frivolous lawsuits, ask them about the 200,000 deaths per year. If that number is too big, let’s break it down. It’s well over 500 people per day dead from preventable medical errors.  Wow.

The Hearst news system’s reporting at Dead By Mistake is timely, substantive and informative. In short, this is journalism at its best.

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Governor Palin discovers the need for an open civil justice system

I was taken by this 4th of July missive from Governor Palin’s attorneys relating to a claim for defamation. I know nothing of the statements or claims, but apparently Gov. Palin’s legal team takes issue with those who claim that Gov. Palin resigned because of a pending corruption investigation.

Like I say, I don’t know a thing about it and have no opinion about any of it. But what catches my eye is that Gov. Palin and her legal team are not bashful about resorting to the courts to assert claims for defamation.

I suppose that this is as it should be, but I can’t help but chuckle. I know that Gov. Palin has complained about too many lawsuits, frivolous lawsuits and the like many times over. Even so, she does not hesitate to threaten litigation when her ox is being gored.

I have no quarrel with her upset or the prospect that she might choose to sue. But let’s be clear that those who resort to the courts should have no basis to question others who do exactly the same thing.

In the case of Gov. Palin, defamation is a tricky claim. It requires proof of false statements. It also requires proof that the false statement caused injury to reputation. I have a hard time seeing how Gov. Palin could prove injury to reputation, even if the statements are false. But that, of course, is a question for a jury.

At bottom, I will forever more say, “Oink!” anytime Gov. Palin or her supporters criticize others who might seek relief through the civil justice system. After all, if it’s acceptable for Gov. Palin to use the civil justice system with what might be a questionable claim, the rest of us should not be hit with a higher standard.

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Professor Epstein’s agenda: cut off patients’ access to the courts

Usually the false platitudes about the civil justice system are found on the talk radio and no-news cable sources. But here is a stunning one-sided view of the civil justice system from a law professor.  According to law professor Richard Epstein, the civil justice system fails in its ability to handle malpractice claims.

Professor Epstein apparently dislikes the jury system.  That’s a fairly radical and unAmerican place to start, as both the U.S. Constitution and the constitutions of the various states enshrine the right to trial by jury as one of the fundamental American rights. I imagine that even the Professor recalls his history that our founders viewed that right as one of the best defenses against the tyranny of the crown.

To be sure, the crown today is not worn by a monarch. Instead, today money is king. The right to trial by jury levels the playing field between the wealthy and middle class. Prof.  Epstein is pushing uphill against a fundamental right. Tough place to start, professor.

Beyond philosophy, there are particular problems with Prof. Epstein’s analysis. For example, he embraces the English loser pays rule as an equitable approach.  But he neglects to acknowledge that the English have come to the conclusion that the loser-pays rule is unfair and should be discarded. Loser pays discriminates against middle- and low-income patients and raises the risk of higher legal costs.

The professor is apparently concerned with meritless medical lawsuits. He misses the mark on that as well. While some cases go forward that should not, Professor Epstein fails to acknowledge that more frequently, juries fail to award damages in cases in which there was an injury caused by a doctor’s error.

The professor proposes caps on damages. What he fails to acknowledge is that such caps discriminate against older workers. As well, many states have declared caps unconstitutional because the states decided long ago to entrust such matters to juries, not to lobbyists making one-size-fits-all rules about damages in all cases.

Professor Epstein confuses the macro with the micro. He is happy to selectively argue numbers, but he ignores the toll of preventable deaths in the medical system. Here is a number that he overlooks. In a two year period, a single type of error–failure to recognize and treat complications in a hospital setting–resulted in a reported 188,000 deaths. One can treat that as a dollars and cents problem, but it is far more accurate to look at the 188,000 family tragedies before declaring that we have a cost problem that can only be fixed on the backs of patients.

I have little patience for law professors who live in ivory towers. Let Professor Epstein face a family who has lost their mother to preventable medical injury. Let him hear from parents who buried their kids who died due to callous mistakes. Let him understand that these statistics have faces and stories.

Those of us who dare to try cases against physicians and hospitals take on some big challegnes. Jurors don’t want to believe that a doctor made a mistake. They don’t want to have to question the care that they get from their healers. This is good and right. But even so, no one–not even a law professor with all the answers–should confuse the cold comfort of cost-benefit analyses, numbers and statistics with the tragedy of profound injury.

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