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Malpractice Caps Won’t Protect Harmed Patients

Medical-malpractice reform bills currently moving forward in both the Iowa House and Senate (SF 465) attempt to place a $250,000 cap on non-economic damages, such as “pain, suffering, inconvenience, physical impairment or mental anguish.” The push to limit non-economic damages comes from the provider community, which includes doctors and hospitals.

Both sides of malpractice reform offer persuasive arguments on the merits of these reforms. Injured individuals and their lawyers argue against malpractice reform, saying patients won’t be protected against negligent providers. Because of errors, healthcare costs are higher.  Botched care requiring fixes often happens without patient knowledge and involves additional patient and insurance payments. The social and economic costs of medical errors are also enormous.

Doctors and hospitals, on the other hand, usually push for reform, saying it will protect patients from having to pay the high costs of malpractice insurance and help curtail defensive medicine practices – presumably through lower health insurance premiums – and perhaps increase accessibility to some healthcare services.

Interestingly, a recent report from personal finance website, WalletHub, indicated that Iowa is the best state for doctors to practice medicine, when comparing 14 different relevant metrics, and Iowa is the fifth least-expensive state for annual malpractice liability insurance.

But here’s the fundamental question that gets lost: Will capping non-economic damages provide the necessary incentives for providers to alter their practices enough to eliminate avoidable medical errors? This should be the most critical question regarding malpractice reform being debated in Iowa and elsewhere. Unfortunately, the Iowa bills fail to address this issue.

Patients expect to be safe when they receive healthcare from the providers they trust. Yet, solid evidence suggests this trust is routinely violated. We’ve made relatively little progress in reducing preventable medical errors since 1999, the year the Institute of Medicine released their book, ‘To Err is Human.’ In the last year, using national estimates on preventable medical errors, my organization extrapolated that a mid-range estimate that 85,000 patients are harmed in Iowa hospitals yearly due to preventable medical errors. This number does not include harm occurring in physician clinics, outpatient surgery centers, nursing homes and other care locations.

I don’t represent trial lawyers nor healthcare providers and I have become rather apostate regarding political parties. In my opinion, tort reform should be about reducing medical errors – the root cause of why we have malpractice issues in the first place. By working toward the elimination of the root cause – medical errors – malpractice and its negative side effects will also disappear. This more logical approach will benefit patients, providers and our overall healthcare system. Adopting safe care practices would substantially reduce the costs of botched-care fixes and defensive medicine – in addition to enhancing the quality of life for patients and their caregivers.

As the Iowa bills demonstrate, we continue to seek ‘quick fixes’ that gnaw at the edges of the problem. But these laws seldom address the core reasons of why many medical errors happen.  Medical errors are, unfortunately, a fact of life.  But many are avoidable. In our healthcare world, we have well-meaning and very capable caregivers. Too often, however, we also have broken organizational cultures that inadequately address patient safety protocols and burned-out physicians and staff who are required to “produce” at unsustainable levels. Any meaningful reform must begin at the healthcare organization level, ensuring we all receive appropriate and safe care. Organizations providing impactful interventions to help promote safe cultures of care can greatly improve safe care practices.

Misguided malpractice reform can actually exacerbate rather than eliminate medical errors. Placing caps on damages, economic or otherwise, insulates the medical community from high monetary awards, yet offers little, if any, incentives for healthcare organizations to establish clear and genuine protocols to ensure a culture of safety. The right incentives matter, especially when it comes to the safe care we trust we’ll receive.

Isn’t it time for provider organizations to adopt a culture of safety, rather than seek malpractice caps that do nothing to protect us as patients?

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