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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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Having the BHAG to shoot for the Moon

Landing On The Moon - A BHAG!

The BHAG we need in healthcare safety should be nothing short of landing on the moon.

Did you know that up to 440,000 lives are lost annually in our hospitals due to preventable mistakes?

Because of this, we desperately need a Big, Harry, Audacious Goal (or BHAG) to solve this national tragedy, and it cannot happen soon enough. By the way, BHAG was a phrase coined by author Jim Collins.

On May 25, 1961, President John F. Kennedy addressed a joint session of Congress stating that the U.S. should set a goal of “landing a man on the moon and returning him safely to the earth” by the end of the decade. By making this bold statement, Kennedy captured the attention, imagination and collective will of our country. Eight years later, his BHAG was accomplished. Amazingly, we put a man on the moon using 1960’s technology.

In December 1999, the Institute of Medicine (IOM) released a seminal book, ‘To Err is Human: Building a Safer Health System.’ This book raised eyebrows and presumably generated supposed action. Using the annual estimate of 98,000 preventable hospital deaths, the IOM report attempted to galvanize this frightening number of avoidable deaths and set forth a worthy goal: “Given current knowledge about the magnitude of the problem, the (IOM) committee believes it would be irresponsible to expect anything less than a 50 percent reduction in errors over five years.”

Was the IOM goal reached in five years? No. In 15 years? Definitely not. Based on recent reports, preventable hospital deaths in the U.S. are greater than previously understood.

In 2013, the Journal of Patient Safety estimated that up to 440,000 lives may be lost annually in our hospitals due to preventable errors – over four times the number reported by the IOM. This equates to three jumbo jets falling from our sky EACH DAY, incurring 1,200 casualties. Another 10- to 20-times this number are seriously injured in our hospitals due to preventable errors. At best, we are making glacial progress.

Since the IOM report was released, the estimated number of lives lost due to hospital errors is alarming – between 1,470,000 and 6,600,000. Why such a chasm in numbers? Most errors go unreported for various egregious reasons. Our cobbled ‘system’ may kill as many people every eight days than were lost on 9/11 and in the Iraq and Afghanistan wars (9,469). Since 1999, more Americans have needlessly died in our hospitals than had died or were wounded throughout our entire history of wars (2.7 million).

‘To Err Is Human’ suggests that the problem is not bad people working in healthcare, but good people working in bad ‘systems.’ It is ironic that the very system we trust to ‘do no harm’ causes a great deal of lethal harm. Unlike actual jets falling from the sky, lives lost in our hospitals happen silently, one at a time. These fatal errors cannot be managed and improved if they are not first acknowledged and measured. Trust must be earned in healthcare, not blindly given. Without broad and consistent public outrage, this national tragedy will continue to persist with little hope of sustained improvement.

In our 2014 Iowa Employer Benefits Study, a top priority of Iowa employers is patients’ safety of care. Employers correctly perceive the safety issue has been inadequately addressed.

Because healthcare is local, solutions must be local. Hospital board members must insist that patient safety is paramount in setting their hospital’s long-term vision and mission. Their safety culture should permeate throughout the entire organization through policies, decision making, resource allocation, and most importantly, complete public transparency. Embracing this culture with words alone is nothing more than deceptive marketing fluff that silently kills.

If efforts to reach the moon were similar to how we confront safety of care, we would still be floating in boundless black space with little hope of reaching our destination. The BHAG we need in healthcare safety should be nothing short of landing on the moon by having the courageous willpower to get there – just like we did in the ’60s.

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Voices on Hospitals: ‘Trust’

Trust in our HospitalsRegardless of the role we serve – whether personally or professionally – the ‘trust’ factor is critical. In business, trust must be earned. It’s the power-brand that represents the DNA of any organization.

However, I’m not so certain that it’s occurring in our current healthcare ‘system.’

In healthcare, many times trust is blindly given when it is not warranted. To better illustrate this point, the Des Moines Register recently published a story, “Ex-staffer: Risk to 2 patients hidden.” 

The story is about Robert Burgin, an infection-control specialist for Mercy Hospital in Council Bluffs. Mr. Burgin resigned his position because his employer was unwilling to tell the truth to patients whose health may have been compromised due to medical mistakes. Based on this article, I commend Mr. Burgin for holding firm with his beliefs that patient safety is paramount.

Secrecy in healthcare hasn’t changed much in 15 years since the Institute of Medicine’sTo Err is Human’ book was published. The practice of health providers suppressing similar stories from public knowledge is reprehensible. As patients, we trust our providers to do the right thing, regardless of the circumstances involved. Medical organizations that are sincere about pursuing and maintaining an enduring culture of trust should establish initiatives to emotionally connect with their patients to perpetuate that trust.

Indicator #5: Trusting our Hospitals
‘Trusting our Hospitals’ is our fifth performance indicator. Overall, Iowa employers give statewide hospitals an un-weighted score of 7.2, or a grade of ‘B-.’ When segmented into five regions using size-weighted scores, four regions received a ‘mid-to-high C’ grade while the northwest region graded at a ‘B-.’ Keep in mind, these are ‘average’ scores/grades — some hospitals have better-than-average grades, while others have below-average grades.

Regional - Trusting the Healthcare Provider Community Map-Master

Going forward, Iowa hospitals must address whether or not having mid-level grades on ‘trust’ are acceptable. Since competition can be fierce within certain markets, low trust in a particular hospital can adversely impact hospital revenue over time.

Hospitals may advertise their quality – perhaps a national publication has included them in one of their quality rankings. But merely telling the public they provide quality is far different from consistently demonstrating this over the long term. 

Given the pressure that Mr. Burgin was under to keep this information hidden, he should be recognized for his courageous intent on maintaining the public’s trust. Why not create a special award for those who demonstrate this selfless quality?  We could call it “Profiles in Health Care Safety Courage,” to promote similar actions by other health care workers. I would like to think that this on-going award would be recognized by the media and others who want to help promote the ‘trust’ factor in healthcare. It’s certainly something to think about and I welcome any ideas you may have on this topic.

Trust should NOT be something we randomly give away. It is one performance indicator that can be greatly improved through a systematic and transparent approach. Isn’t it time to do so?

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