There is an old Texas expression – “Closing the barn door after the horse gets out.”  No better description applies to the recent set of articles published in the Houston Chronicle and other Hearst newspapers on medical errors.  Here are excerpts from a report that refers to the articles, as they apply to Texas:

Hearst Newspapers runs a series of articles called ” Dead by Mistake,” analyzing the causes and effects medical errors across the US.
In the lead article, Hearst Newspapers (8/8, Crowley, Nalder) reported that “experts estimate that a staggering 98,000 people die from preventable medical errors each year,” and “federal analysts believe the rate of medical error is actually increasing.” Hearst’s “national investigation…found that the medical community, the federal government and most states have overwhelmingly failed to take the effective steps outlined in” a “highly publicized federal report” issued ten years ago which “called the death toll shocking and challenged the medical community to cut it in half.” Hearst noted a “secrecy built into the system,” but “a Hearst data analysis lifted a corner of that veil of secrecy to show that in five states served by Hearst newspapers — New York, California, Texas, Washington and Connecticut — only 20 percent of some 1,434 hospitals surveyed are participating in two national safety campaigns begun in recent years.”
. . .
Texas lacks reporting system.
The Houston Chronicle (7/30, Langford) reported, “For the past six years, Texas has fumbled attempts to establish a medical error reporting system, often leaving patients to discover errors the hard way – when a mistake costs them their livelihood or the life of a loved one. A 2003 measure to report errors was so vaguely designed for the state’s 613 hospitals that even the Texas Hospital Association, which supported the measure, offered no resistance when lawmakers decided to eliminate it in 2007.” Starr West, the hospital association’s senior director for policy analysis, “concedes now that facilities underreported mistakes during the four years the law was in place. That’s small comfort for people like Geoff Schorr, a personal-injury attorney in Dallas who said he never got a straight story about what happened during a 2006 surgery that caused the death of his 7-year-old son, Porter.” This year, “a new law passed that requires hospitals to report more than two dozen types of errors by hospital. But important details, like how the system will be designed and maintained and how the results will be interpreted, have not been determined.”
. . .
Patient dies after feeding tube inserted into lung.
Hearst Newspapers (7/30, Stoeltje) reported, “Elbert Eugene ‘Gene’ Riggs Jr. went into Brooke Army Medical Center in San Antonio for a stomachache. He ended up dying there – after a feeding tube was inserted into his right lung.” Government lawyers representing BAMC, in their written response to a lawsuit brought by Riggs’ family, “admit the feeding tube was misplaced, but they deny it caused Riggs’ death.” Riggs’ case “illustrates how murky medical error cases can be, even when a hospital admits a mistake.”
. . . and finally:

Texas tort law caps damages for paralyzed engineer.
The Houston Chronicle (7/30, Langford) reported on Bashar Ashkar of Texas, who became paralyzed when a “steroid injection into his spine for arm and back pain resulted in a cerebral hemorrhage.” In December, “the family settled its lawsuit against one of Bashar Ashkar’s doctors, after the other parties had been dismissed from the suit. Because of 2003 tort reform in Texas, most of the $1.9 million settlement went to legal fees; to continue Bashar Ashkar’s life insurance policies; and to pay back his health insurance companies, which consider what happened to him an unusual event not foreseen as a part of his coverage. Tort reform resulted in a $250,000 cap on ‘noneconomic,’ or pain and suffering, damages in Texas.”

Where were the Houston Chronicle and the rest of the Hearst organization when “Proposition 12″ was passed in an “emergency special election” in 2003?

I have heard many responses to my email regarding the healthcare debate.  One thing I have noticed in media coverage of the issue is how easy it is for people to blame lawyers.  It is being accepted as gospel that “tort reform” will help drive down the cost of healthcare.  When the statistics show that lawsuits account for less than 1% of the cost of healthcare, the response is that the fear of lawsuits make doctors practice more defensively, and thus order more tests that are not needed.

In a follow-up article in the Houston Chronicle series, the paper pointed out, “After the $250,000 cap was imposed, the number of complaints against Texas doctors to the Medical Board rose from 2,942 to 6,000 in one year. More than half of those complaints were about the quality of medical care.”

What does this tell us?  Did reducing the fear of being sued make doctors practice more efficiently and effectively?  No.  Instead of fixing the problem by requiring insurance companies – who make a fortune writing other forms of coverage in Texas – to carry malpractice coverage at reasonable rates AND taking strong measures to eliminate medical errors, the rights of patients injured by negligent doctors and hospitals were put on the chopping block.  As a result, patients with legitimate claims are being denied representation.  I am not advocating for frivolous lawsuits.  I do not believe people should be able to sue with no basis.  However, it is too expensive, time-consuming and difficult to fight a malpractice case when the stakes are artificially lowered to the point where no one can win.  And that is exactly where the current $250,000.00 non-economic damage cap places most Texans with legitimate malpractice claims.

Here is the math.  A stay-at-home mom with a husband and four children dies as a result of malpractice.  As with most cases of medical negligence, her death is caused by either a doctor or a hospital, but not both.  After her death, the family crowds into the office of a lawyer and pleads their case.  The lawyer figures the litigation will cost $50,000 to prosecute (in out of pocket expenses, not including the lawyer’s time).  If the case is won, the maximum recovery is $250,000. If the lawyer charges a 40% fee (which is typical), the lawyer receives a fee of $100,000 plus the recovery of his $50,000 in expenses.  The family is left to split $100,000 five ways.

That is what you call a bad deal for everyone, except the insurance company for the doctor or the hospital responsible for the woman’s death.

How do you tell a child who has lost her mother that her claim is only worth $20,000?

What reasonable investor would sink $50,000 into a project that would, if everything went as well as possible, return $100,000?  Add in hundreds of hours of time, a two to three year delay, the very high risk of losing (most malpractice trials are won by the defense), and the likelihood that the case will be settled for some amount less than the maximum (why would anyone settle a case for as much as they could lose at trial?), and you can figure out why most lawyers are no longer taking these cases.

The first solution to the malpractice problem is the same as the solution to the medical error problem – demand more accountability from doctors and hospitals, make doctors and hospitals financially responsible (again) for their mistakes, and improve the quality of healthcare.  The second solution is to force insurance companies who profit handsomely from other types of coverage to write reasonable amounts of coverage for doctors, at rates doctors can afford to pay.  There is precedent for this in automobile insurance, where carriers are all forced to accept a piece of the “high risk pool.”

The solution is NOT to deny victims with legitimate claims access to the courthouse.

Everyone loves to complain about government and the closer to Washington the louder the clamoring.  Town hallers holler the feds wreck everything they touch.  My recent experiences with the federal tort claims process suggest otherwise.

People injured by federal employees must submit their claims for administrative determination.  Claimants may file suit only if this process fails to reach a settlement.

Attorney’s fees in federal tort claims are regulated.  Instead of the usual 33% (pre-lawsuit) or 40% (if a lawsuit is filed), fees in federal claims are capped at 20% at the administrative level and 25% if suit is filed.  Many lawyers shy away from federal tort claims because of these fee limitations.

Recently, I handled two federal tort claims. In one, an Army recruiter caused a car crash that injured a young medical office assistant.  In the other, a middle-aged maintenance worker’s eye was damaged by a procedure that went badly at the VA Hospital.  In each case, the negligence was apparent and the injury substantial.

In most insurance claims, an overworked (underpaid, often unappreciated) adjuster collects documents, and all contacts are by phone or mail.  The adjuster may take a recorded statement (by phone) to cover the basic liability facts.  Once documents are gathered, a committee at the insurer evaluates the claim.  A brief period of haggling follows, after which the case either settles or suit is filed.  The process is so impersonal it is antiseptic.  You would hardly know real people were involved.  Most adjusters have little discretion or personal interaction.  This is unfortunate, as many adjusters are excellent at evaluating claims, and their skills are being wasted.

In both my clients’ federal claims, I filed the proper forms, with the Army in one and the Veterans Administration in the other.  In each case, a government lawyer called to request an interview with my client.  Not a telephone recorded statement, but a real, in-person conversation.  In one case, an Army captain and his assistant drove from San Antonio to meet with my client in my office.  The VA lawyer gave me the choice of coming to my office or meeting at hers.

In both meetings, the attorneys for the government were kind, considerate and respectful.  They expressed regret that my clients were injured and assured us they would make every effort to resolve the claim.  Over the next several months, each government lawyer did exactly that.  From my conversations and exchange of information, I witnessed thorough and thoughtful evaluations of the claims, followed by friendly and collegial negotiations.  Each case settled for a reasonable amount.  Considering the reduced fee and minimal expenses involved in the administrative process, my clients came out with excellent recoveries.

It may be unfashionable to say nice things about government bureaucrats, but all of us depend upon city, county, state and federal employees to provide services ranging from garbage collection to national defense.  So much of what we take for granted in our daily lives is the product of a government program – schools, clean water, good roads, safe buildings – the list is almost endless.  While there is room for waste, incompetence and inefficiency in every organized human activity, public and private, we all benefit from good government.

I felt pride in my country for the professional and effective manner my two clients’ claims were addressed by the federal government.

In a related story, the only class of citizens who have no right to bring tort claims against the federal government are active duty military personnel.  Creating the “Feres Doctrine,” the Supreme Court of the United States held in 1950 that members of the active duty military are prevented from making tort claims against the government.  Rather than restricting claims to prevent damage to military effectiveness or morale, the Court painted with a broad brush and disallowed all claims.  The family of Nathan Hafterson, who died as a result of alleged malpractice at Naval Hospital Jacksonville, is seeking a review of that doctrine in a case now pending before the Supreme Court.  Let’s hope they get it.

Our men and women in uniform, and their families, deserve a reconsideration of the Feres Doctrine.  Their service and sacrifice should be rewarded, not be punished.

There are a number of stories being told in the healthcare debate.  Here is my perspective.  At the outset, let me state where I am “coming from” in this discussion.

I am a small business owner.  I provide health insurance coverage to my employees and pay 100% of the premium.  The plan is not perfect, but it has good benefits, including deductible and co-insurance rates that are manageable.  Next to employee salaries and rent, health insurance is my largest overhead cost.  Many small companies do not insure their employees, require employees to pay a portion of their monthly premium, or have deductible and co-insurance levels significantly higher (worse) than mine.

I live in Texas, which leads the nation in the percentage of residents who are uninsured, with 25% of our populace (compared to 15% nationally) living on the edge of physical or financial ruin due to a lack of access to healthcare or the resources to pay for it.  These are not just unemployed or undocumented people.  Over 70% of uninsured households in Texas have at least one full-time worker.

I have represented hundreds of people who have no health insurance, who are suddenly and unexpectedly faced with a critical need for healthcare.  I have seen the anguish these people confront when they are faced with the choice of going without healthcare, putting as much as they can afford on a credit card, or attempting to obtain care from the limited public health services available.  Medical debt is responsible for well over 50% of all personal bankruptcies in our country.  And if you live in Harris County, you should be extremely thankful for Ben Taub and LBJ, which provide care residents of other counties literally would die for.

Finally, I believe government serves a purpose beyond protecting our borders and defending our freedom, both of which I support.  Government should also protect and provide for the weakest among us, educate our children, care for our elderly and promote opportunity for everyone, regardless of who their parents are.  When I pay taxes, I support those efforts, and if paying a little more means we have a more just and caring society, I agree to pay more.

Having stated those “bona fides,” I understand that the mess that is our healthcare insurance system will not be fixed with one stroke of the legislative pen.  Notice I did not say our healthcare is a mess.  No one understands more than I how well American healthcare serves those, including myself and my family, who have health insurance coverage.  However, when over 35% of every premium dollar is eaten up by administrative costs and profits, and health insurance executives receive multi-million dollar bonuses for overseeing a system that generates revenue from denying or restricting access to care, something has to change.

President Obama was smart to leave the details of healthcare reform to Congress.  We saw what happened when the Clintons attempted to impose a solution from the White House.  Even with legislative cover, and a solution that is at best a watered-down version of the original goal, the economic powerhouses of those who have gorged on the current dysfunctional system are gearing up for an epic battle during the coming Congressional recess.  The media battle has already begun.  You will be told the government is taking over healthcare, that you will lose your coverage, that you will no longer be able to choose your doctor, that bureaucrats and not your doctor will decide what treatment you receive, and that you or someone you know will die if things change.

What we currently have is a healthcare insurance industry that is under-regulated and running amok.  Insurers, and not the government, have already taken over healthcare.  Insurers decide if you can obtain coverage and exclude those with prior illnesses or claims.  Insurers choose what doctor you are allowed to see.  Health insurance bureaucrats make or implement medical decisions that control what treatments and medications are covered.  People die every day because they cannot see a doctor at all, or wait until it is too late because they cannot afford to do otherwise.

Things can get worse.  You are going to hear all about that.  But, things can also get better.  I do not ask that our government fix everything with the first attempt.  But, the current system is unfair and immoral.  We live in the wealthiest and greatest country in the world.  There is no excuse when a person who works full time cannot afford to send his or her spouse or child to a doctor.  I am not getting bogged down in the details of the proposals.  I realize this is a political process, and what comes out of Congress at the end of that process will likely be no more than the first step.  But, if it improves access to coverage for the 25% of my fellow Texans who have none, it will be a step in the right direction.