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Study fuels medical malpractice reform arguments

BOSTON — As lawmakers continue to push a bill that would limit medical malpractice lawsuits, opponents are boosting their criticism of the measure, pointing to a recent study showing that hospital errors occur 10 times more frequently than previously thought.

“We have always discussed the 98,000 patients who die from medical errors each year,” said Sue Steinman, director of policy at the American Association for Justice in Washington, D.C., referring to the 1999 estimate by the Institute of Medicine, also in the District. “This study reinforces the fact that the numbers we have been talking about are in actuality extremely low.”

The study, published in the April issue of the Bethesda-based journal Health Affairs, used new methods of identifying medical errors and concluded that as many as 90 percent of hospital medical errors are missed. It calculates that as many as one in three hospital visits lead to an injury because of a medical mistake — a rate 10 times higher than previously believed.

Another report in the same issue of the journal estimates that the annual cost for medical errors that lead to patient harm is $17.1 billion.

The studies were published one day after lawmakers held the latest hearing on a measure that would place a nationwide cap on noneconomic and punitive damages in medical malpractice cases.

The legislation, H.R. 5, the Help Efficient, Accessible, Low Cost, Timely Healthcare (HEALTH) Act, would also bar punitive damages in lawsuits involving FDA-approved drugs, limit attorney fees to 15 percent of recoveries of more than $600,000, shorten the statute of limitations for medical malpractice claims, eliminate joint and several liability in favor of a “fair share” rule and allow future damages to be paid in installments over time.

Steinman said the measure would not only rob injured patients of their Seventh Amendment right to a jury trial, but also wouldn’t do much to cut down on the cost of the nation’s health care system. Medical liability damage awards amount to only a fraction of a penny on the dollar of the cost of health care, AAJ officials estimate.

“We feel that the core values of justice need to be protected, [including] the right to a jury trial,” Steinman said.

At the April hearing on the bill before the House Committee on Energy and Commerce, lawmakers supporting the measure said it was necessary to curb a medical liability climate that drives physicians away from some states and causes many doctors to practice costly defensive medicine.

“We all agree that patients who are injured by medical mistakes should be properly and fairly compensated. However, capping noneconomic medical malpractice awards does not deny patients their day in court or fair compensation,” said Rep. Joe Pitts, R-Pa., who chairs the subcommittee. “It merely reins in over-the-top verdicts and allows conscientious doctors to afford insurance coverage and serve their patients.”

Rep. Phil Gingrey, R-Ga., the sponsor of the bill and an OB/GYN who himself has been sued four times for medical malpractice, said other obstetricians are afraid to recommend certain procedures — including vaginal birth instead of cesarean section — for fear of being sued.

“A cesarean section can cost the health system twice and much, if not three times as much, as a vaginal birth,” Gingrey said.

One hearing witness, Dr. Lisa Hollier, a fellow at the American College of Obstetricians and Gynecologists, said that roughly 90 percent of ACOG members have been sued at least once, and that two out of three OB/GYNs have changed their practices based on the medical malpractice climate.

Other lawmakers, including Rep. Lois Capps, D-Calif., blasted the measure, saying it would only harm injured patients.

“We certainly should be looking at ways to bring down the cost of medical malpractice insurance,” Capps said. “But the bill before us today only limits the amount of money that patients who have been wrongfully harmed can collect to compensate them for their injuries. It does nothing to solve the root of that problem: reducing the incidence of malpractice.”

She also chided House Republicans for not allowing the issue of medical liability to remain within the purview of the states.

“I find it ironic that [members of] this majority, who for so long have been champions of state government and local control, are supporting a bill that would impose a federal one-size-fits-all solution with no flexibility in an area that has been traditionally a matter of state law,” Capps said.