Congress Recognizes Medical Malpractice Epidemic and Does What Now? 

In light of all the hype regarding the crisis of frivolous medical malpractice claims, most folks might be surprised to learn that Congress has recognized the epidemic of medical malpractice since 1986.  In fact, an Act of Congress was passed in that year to try to deal with it.

The simple fact is the way it was dealt with then and continues to be dealt with now has made the problem worse.  All the while thousands upon thousands of Americans die each year as result of preventable medical error.  Exponentially greater numbers are seriously and/or permanently harmed.

And yet the beat goes on with virtually every breed of politician.  Attack the trial lawyers and attack the innocent patients along with their families who have been harmed in order to protect the insurance industry.  A brief history of the problem and the response is illustrated beginning with the most recent and perhaps most remarkable Congressional action first.

Congressional Hearing to Address 1000 Preventable Deaths Each Day

Just this month, there was a Subcommittee on Primary Health and Aging held on July 17, 2014 entitled: “Subcommittee Hearing – More Than 1,000 Preventable Deaths a Day Is Too Many: The Need to Improve Patient Safety.”

I am no mathematician but it appears the subcommittee has recognized at least 365,000 American deaths each year as a result of preventable medical error.

In other words, medical negligence is killing Americans by the thousands and this has been well established since at least 1986.  But lets back up.

Health Care Quality Improvement Act of 1986

There are few Americans that have not heard about the mythological attack on innocent medical providers by greedy and opportunistic patients and their lawyers. Unfortunately, far too many have been swayed by the constant onslaught of insurance industry driven propaganda.

Every year, every election cycle, every legislation session, every month and every day, the refrain goes on and on.  No matter that it is false.  And no matter that the falsity of the myth has been known for decades.

In fact, Congress has recognized and has attempted to address the problem as early as 1986.  Under the Health Care Quality Improvement Act of 1986, 42 U.S. Code § 11101 – Findings, the Act reads:

“The Congress finds the following:

(1) The increasing occurrence of medical malpractice and the need to improve the quality of medical care have become nationwide problems that warrant greater efforts than those that can be undertaken by any individual State.”

From the Beginning – Focus on Medical Providers/Insurers Rather than Patients

Thus, Congress recognized a national problem, which could not be addressed by the states alone.  Unfortunately, even then in 1986, the focus was not on patients but on the medical community and more precisely their insurers.

The Act reads further:

“(2) There is a national need to restrict the ability of incompetent physicians to move from State to State without disclosure or discovery of the physician’s previous damaging or incompetent performance.

(3) This nationwide problem can be remedied through effective professional peer review.

(4) The threat of private money damage liability under Federal laws, including treble damage liability under Federal antitrust law, unreasonably discourages physicians from participating in effective professional peer review.

(5) There is an overriding national need to provide incentive and protection for physicians engaging in effective professional peer review.”

In short, despite the obvious problem driven by negligent medical care, Congress chose to protect physicians and their insurance carriers over patients.

How did that work out for patients?  Let’s take a look at the numbers.

Death by Medical Error Has Skyrocketed!

Leaving it up to physicians to deal with their crisis, which was created by those very physicians, has had disastrous effects for patient safety.

The Institute of Medicine found in their landmark study, To Err is Human, that up to 98,000 Americans were killed each year as a result of preventable medical error.

The response of politicians was as outrageous as it was predictable, more calls to reign in the fabled medical malpractice lawsuit crisis.

Since that time, the numbers have only gotten worse.  In fact, the number of preventable deaths has gone up by as much as 400%.  A more recent study from the Journal for Patient Safety, published in 2013, estimates that up to 440,000 Americans die each year as a result of preventable medical error.  The study suggests further that the figure could be much higher and that incidents of “serious harm” could be as high as 10 to 20 times those numbers.

Political Response Continues to Side with Medical Providers/Insurers

Remarkably, the response of most politicians, both Democrat and Republican, is to push for further protections for doctors or, more accurately, their insurers.

The fact is despite the huge increase in deaths and serious harm to patients, medical malpractice lawsuits have been in decline for the past 20 years or so.  Yet, medical malpractice insurance premiums continue to go up.

The refrain is that opportunistic patients and their lawyers prey on the poor doctor who is just doing his best to help patients. In reality, it is the insurance industry that preys on doctors and patients alike.  

What Can Patients Expect?

Perhaps it is cynical, but it seems that they can expect more of the same.  As we speak, there are initiatives in many states to throw further obstacles in front of patients who have been harmed or killed through medical negligence.

Likewise, as we speak, political campaigns are funded not by patient groups or really even medical groups, but by insurers.

Even with the recognition of the Subcommittee on Primary Health and Aging that “More Than 1,000 Preventable Deaths a Day Is Too Many”, little will likely change.  The simple fact is that voters eat up the attack on lawyers.

It is easy to vilify lawyers.  However, these same lawyers are the only ones seriously advocating patient safety. They are the only ones putting their time and money in to addressing medical malpractice.

Unfortunately, due to all the many hurdles put in their way, only the most outrageous acts of medical negligence involving serious injury or death can be taken on by many law firms.  This leaves literally hundreds of thousands of victims with no recourse and no recovery.

This is unlikely to change.  It is a fail-safe campaign strategy to attack lawyers.  No matter that the real victims of these attacks are innocent patients and families.

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