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Quack remedy to cap malpractice awards

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By MARTIN DYCKMAN, Times Associate Editor

© St. Petersburg Times
published January 19, 2003

TALLAHASSEE -- If President Bush had read the front pages Thursday, he would have seen the story, first reported by the New England Journal of Medicine, that said surgical teams leave clamps, sponges and other potentially lethal things in about 1,500 people a year.

But he must have stopped at the sports page, or maybe the crossword puzzle. In a speech later that day, he came out hard, again, for a quack cure for the medical malpractice problem.

As he seems to see it, the problem is simply that too many people are suing too many doctors for too much money. So he wants to cap "pain and suffering" awards at $250,000, and to crack down on lawyers' fees, too.

Down here in Florida, brother Jeb sees it the same way. Neither seems to have noticed the government reports showing that the average size of judgments against the health care industry was going down, not up, last year.

However, the insurance premiums that doctors pay are still going up. For some, way too high. Sober analysis suggests that financial mistakes by the insurance companies have more to do with that than hungry lawyers or generous juries do, but the doctors aren't listening to reason. They're listening to the insurance lobby.

Why doctors should believe anything the insurance lobby says, after all it has done to them with managed care, is one of life's great mysteries.

Before taking it out on the trial lawyers, you'd think the doctors would be the first to want to know how many medical mistakes occur on short-staffed wards, or in harried emergency rooms, because of the financial clamps imposed by managed care. And to be fair about it, how many owe to insufficient compensation for Medicare and Medicaid.

You'd think Congress and the Legislature would want to know, too. You'd think there's a lot they would want to know about what could reasonably be done to make medicine safer, starting with whether state licensing agencies are tough enough.

A Harvard University study in 1990 concluded that as many as 100,000 deaths a year might owe to mistakes in hospitals. A National Academy of Science survey in 1999 put the fatal error rate at between 44,000 and 98,000 a year Those weren't the trial lawyers talking. These were disinterested medical experts. They have no dog in the fight.

The real problem in medical malpractice litigation is not that there are too many claims, but that they represent only the most extreme cases.

Florida legislators who attended the health care "summit" held here earlier this month heard expert testimony that only one in every eight victims actually brings suit. The trial lawyers themselves screen out many cases simply because they are too small to be worth their time. In that respect, at least, the trial lawyers are the doctors' friends, not their enemies.

"The effect is to have not too many lawsuits, but too few," said Edward A. Dauer, a University of Colorado law professor who chaired a Colorado commission on malpractice. (Dauer also gave it as his opinion that fewer than half of those who do sue actually deserve damages.)

I understood from personal experience the point he was making. My mind went back to a doctor's office and to a hospital room in Tallahassee some 30 years ago. My wife was scheduled for surgery. We made a point of alerting her doctor that she was allergic to Demerol. He said he would write it down.

Three days after the operation, she was still throwing up everything she ate or drank. Nothing about the surgery could have caused that. It finally occurred to me to ask a nurse whether she was getting Demerol.

"Why yes," the nurse said.

A prompt dose of profanity proved to be a miracle cure. When the Demerol stopped, so did the nausea, and Betty went home.

There was, of course, no point in suing. We didn't need a lawyer to tell us that. The only "damages" would have been for three days of needless misery. So we never found out who was to blame for ignoring our proper warning. We didn't even complain to the hospital front office. That was a mistake, but we were happy to be out of there with no lasting harm.

But suppose it had been a fatal allergy?

Today, hospitals in Florida are required to report such "adverse incidents" to the state licensing agency. These reports are not public documents, however, so we have to take someone's word for it that these reports are in fact filed when they should be and that something good comes out of them.

According to Dauer, however, "risk management" in American hospitals tends to be more about reducing the risk of being successfully sued than about cutting the risk of doing things for which they deserve to be sued. As, for example, in coaching personnel to take fewer notes that might be subpoenaed as evidence against them.

If that is wrong, so is the damage cap the doctors think they want. Like many a quack remedy, it may "work" for a while. But not for very long.

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