Austin Personal Injury Lawyer - Medical Malpractice

Costs Up, Access Down, Medical Errors Unabated. Should TX Really Be Our Health Care Model?

Alex Winslow — Tue, 06 Oct 2009 12:14:32 GMT

Health care reform has been dominating the headlines for months now. The special interests headed by the insurance industry are doing everything they can to take advantage of the confusion on Capitol Hill over the direction health care reform should take by trying to infuse anti-patient provisions that are designed to lock patients out of the courthouse into the debate.

This is a tried and true tactic for these interests. I’ve seen it happen in Texas where we have been on the front line of a decades-long struggle to preserve and restore our legal rights.

The insurance interests’ plan is to insert Texas-style, anti-patient provisions in the guise of “reform.” Regardless of the hype coming out of these special interests, policymakers should be wary of using Texas as a model.

When insurance lobbyists in my state rammed through legal changes designed to severely limit the legal rights of Texas patients, we heard high-falutin’ rhetoric promising dramatic improvements in the cost, access, and quality of health care.

What has actually happened?

Texas health care costs have increased faster than the national average
Health insurance premiums for Texas families have jumped 92% since 2000
Texas ranks near the bottom in per-capita physicians
Rural and under-served areas in Texas continue to struggle to attract new physicians
Texas has the nation’s highest rate of uninsured

Hardly a ringing endorsement of Texas as a model for the rest of the country.

Lowering costs for both the overall health system, as well as individual families, is necessary, but it won’t be accomplished by stripping patients of their rights. According to the Congressional Budget Office, the entire cost of the medical liability system accounts for only 1.36% of overall health costs – more a rounding error than a panacea. The focus should be on preventing malpractice, not sweeping it under the rug.

As for costs for families, why would we use Texas as an example when Families USA recently found that since 2000 health insurance premiums for Texas families increased 92% - more than 4.5 times faster than income? This during a period of rising deductibles and falling benefits.

As for access to care, the Census Bureau has reported that with 24.5% of our citizens without health insurance, Texas has the nation’s highest rate of uninsured. Also, the American Medical Association has found that Texas ranks 43^rd in the number of doctors per capita, and that more than half of Texas counties have an acute shortage of primary care physicians.

As proof that under-served areas continue to have trouble attracting new doctors, our Republican legislature, along with Republican governor Rick Perry, were compelled to raise taxes this year to fund projects designed to attract physicians to rural areas. This tax hike came six years after so-called tort “reform” was enacted with the promise of improving access to care.

Finally, there is no doubt that medical facilities are enjoying significant savings because patients harmed by medical negligence have had their rights severely restricted. However, there is no evidence that these savings are being used to lower overall health costs. To the contrary, in the three years after Texas imposed arbitrary restrictions on patients’ access to the courthouse, we have seen overall Medicare spending increase 16% faster than the national average, according to data compiled by the Dartmouth Atlas of Health Care. In fact, 10 of the 15 health markets with the highest Medicare spending per enrollee are in states in which the medical and insurance industries successfully lobbied for severe limits on patient rights. Four of the nation’s most expensive health markets are in Texas.

According to the highly regarded Institute of Medicine report “To Err Is Human,” 98,000 Americans die each year as a result of medical errors, and the CDC has found that another 99,000 Americans succumb to hospital-acquired infections every year. Ending the epidemic of medical errors by preventing these needless deaths is a far better way to reduce health care costs than stripping patients of their legal rights.

The reality is that none of this has been or ever will be fixed by taking away the legal rights of patients. Unless we move beyond the insurance industry’s talking points and enact real reforms that force competition in the insurance market, strengthen safety standards, and restore accountability, we will continue to be plagued by an inadequate healthcare system that does more for insurance companies than it does for patients.

Originally posted at InjuryBoard by Alex Winslow

Another Week and Another Article About Texas' Medical Malpractice Caps Not Working

Brooks Schuelke — Tue, 21 Apr 2009 10:09:35 GMT

Last week, I wrote about a study that found that Texas' medical malpractice caps discriminate against the retired and the unemployed. Today, the Dallas Morning News had an article looking at another aspect of medical malpractice reform: whether the reform is leading to reduce health care costs, one of the promises used to convince Texans to amend our constitution to enact the caps.

Not surprising, the article concludes that the caps have not reduced costs for consumers. The article notes that both health insurance costs and Medicare expenses, a guide to health care costs, have continued to increase rapidly. And Texas isn't alone. A December University of Alabama study looked at 27 states (including Texas) that had enacted tort reform measures, and the study concluded "tort reforms have not led to health care cost savings for consumers."

Despite the mounting evidence, we continue to hear the cries from big business and insurance companies that we need more regulation. We're just over 1/2 way through the legislative session, and there continues to be a push to limit consumers' rights. I just hope that this time the legislators will look at the evidence and not allow the wool to be pulled over their eyes.

Originally posted at InjuryBoard by Brooks Schuelke

Texas' Medical Malpractice Reforms Are Discriminating

Brooks Schuelke — Wed, 15 Apr 2009 10:14:19 GMT

In 2003, our medical malpractice reforms capped the amount of non-economic damages that plaintiffs could recover. There were predictions that the cap would be unfair, and there have been anecdotal stories relating to the caps' discriminatory effect, but now, four law professors (including three from the University of Texas school of law, my alma mater) released a study confirming the discriminatory effects of the caps.

The professors looked at how the cap was applied to jury verdicts across the state. The results are stunning. In cases won by the plaintiff, the damages were reduced by the caps in 47% of the cases. Jury verdicts are supposed to be protected. The jurors are the ones that see the evidence, see the victims and get a first hand look at how the malpractice has impacted the victims. The jurors are in the best position to truly determine the plaintiff's loss. And, unfortunately, in almost half the cases where the jury finds that the doctor was negligent, the caps mean that the plaintiff isn't being fully compensated for his or her loss.

And just as feared, the caps have a disproportionate effect on cases brought by the unemployed, the deceased and the elderly because these groups don't have lost wages (economic damages) to prop up their claims.

But I think the study may miss the most discriminatory effect that the caps have, and that's the weeding out of meritorious cases brought by these victims because the cases aren't economically viable. In cases involving a death, the elderly, children and the unemployed, the damages are almost always limited to non-economic damages. It is almost impossible to make these cases work economically. In such a situation, the attorneys are likely being asked to spend $80,000 - $100,000 of their own money (a fairly conservative amount for what it costs to work up a good medical malpractice case) when the best that they can hope for is recovering $100,000 in fees (40% of the $250,000 cap). Add in the difficult nature of medical malpractice claims, and good plaintiff's lawyers have to turn down almost all medical malpractice cases brought by the unemployed or the elderly. (There would probably be better odds in Vegas than what the caps create in these situations.)

Unfortunately, it looks the caps are here to stay, and consumers will continue to get the short end of the stick.

Originally posted at InjuryBoard by Brooks Schuelke

Texas Two Step --- Tort Reform Style

Brooks Schuelke — Mon, 23 Feb 2009 13:48:13 GMT

I'm sorry for my prolonged absence, but the practice of law has stepped in the way of my blogging. Not only have we had the usual business going on, but I was set to start a trial today in a small case. Finally, the adjuster just about doubled her offer last Friday afternoon around 4:30, and we got the thing resolved. But getting ready for trial is kind of like grocery shopping --- no matter the amount of groceries you're buying or the size of the case, it still takes a lot of the same work to get down to the store or the courthouse.

Add in the fact that a new legislative session has started and we're trying to stay on top of tort reform fires, time has just been short.

Fortunately, Steve Lombardi has been taking up my slack, and he has a great post on a horrific Texas medical malpractice case where the plaintiff was a victim of our tort reform era cap on non-economic damages. I can't say anything about it near as eloquently as Lombardi so I urge you to click on the link to read his post.

Originally posted at InjuryBoard by Brooks Schuelke

A Simple Checklist Can Cut Surgical Deaths In Half

Brooks Schuelke — Thu, 15 Jan 2009 11:33:41 GMT

Yesteday, the New England Journal of Medicine, released a study that found that the use of a simple 19 item surgical safety checklist could significantly reduce deaths and save countless dollars. The study, conducted at hospitals throughout the world, asked surgery teams to begin using the World Health Organization's Surgical Safety Checklist.

After introduction of the checklist, postoperative complications and death rates each fell by 36%. Amazingly, the study also found that the change of procedures was neither costly nor difficult. All sites were able to introduce the checklist over a period of 1 week to 1 month, and only two of safety measures on the checklist (use of pulse oximetry and use of prophylactic antibiotics) required a commitment of any resources.

Many of the items on the list are already in use in U.S. hospitals as part of the Joint Commission's Universal Protocol, but the study's authors still estimate that implementing all 19 items in all U.S. operating rooms could save at least $15 billion a year.

These findings are simply stunning. I hope that they'll be adopted as the standard of care to help reduce medical malpractice deaths.

Originally posted at InjuryBoard by Brooks Schuelke

Dennis and Kimberly Quaid Settle With Cedars-Sinai

Brooks Schuelke — Tue, 16 Dec 2008 11:13:18 GMT

As most of you will recall, Dennis and Kimberly Quaid almost experienced every parent's worst nightmare when their twins were delivered too much Heparin at Cedars-Sinai hospital in November 2007. Yesterday, court filings show that Dennis and Kimberly Quaid settled their medical malpractice suit against the hospital for $750,000.00. They will still be allowed to pursue claims against the hospital for any damages sustained by the twins.

If there is any benefit to a situation like this, it is that Dennis Quaid has become an advocate on behalf of those injured by medical errors. I've previously written about his advocacy. I hope that he and Kimberly will both continue their work even after this settlement. Their efforts can mean a lot to many.

Originally posted at InjuryBoard by Brooks Schuelke

Unbelievable! Almost 95% of Nursing Homes Cited For Violating Federal Standards

Brooks Schuelke — Tue, 30 Sep 2008 17:04:14 GMT

A report issued this week by the U.S. Dept. of Health and Human Services found that 94% of the nation's nursing homes were cited for violating federal standards. And not surprising, for-profit homes had more violations than non-profit or government run homes.

Why are the rates so high? This may surprise some since it's coming from a plaintiff's attorney, but I do have sympathy for those trying to run nursing homes. I have family members, friends and clients that work in the industry, and it takes a special person to work in that situation day in/day out. The high stress combined with an overall shortage of nurses makes it very difficult to satisfactorily staff a home and keep it staffed.

At least one study has shown that if nursing homes reduce staff turnover then quality of care improves. So an important question is how do you reduce the turnover? A 2004 study by the University of Texas McCombs School of Business (my undergrad alma mater) found that stable leadership from management was a good start. And that matches my own experience in the industry. Having seen good and bad administrators and directors of nursing, good managment can make all the difference.

So why don't owners get it? I don't know. But as long as they don't and keep providing substandard care, we will continue pursuing claims to protect patients.

Originally posted at InjuryBoard by Brooks Schuelke

Wrong Site Surgery: Is the Standard of Care Enough?

Brooks Schuelke — Tue, 26 Aug 2008 14:50:33 GMT

We have devoted the month of August to Wrong Site Surgeries. Our series started out by looking at the Universal Protocol, the standard of care on how to avoid wrong site surgeries. The standard was adopted several years ago, but now the question arises, "Is it enough?"

At least one commentator (and the results since the adoption of the protocol) suggest that it isn't enough. Steve Sanford, of the Preferred Physicians Medical Risk Retention Group, contends that the Universal Protocol has several flaws that prevent it from being effective. First, he argues against the shared responsibility advocated by the protocol. Shared responsibility is, in essence, no responsibility. When participants to a surgery think other participants are going to check the proper site, the responsibility goes unfulfilled. Instead, Sanford argues that the surgeon should have the sole responsibility and should know that he or she will be held accountable for the errors --- no more suggesting that someone else should have handled it.

Sanford also argues that the protocol is not specific enough and leaves too much interpretation up to individual institutions. If the standard was more concrete and accepted between institutions, it might be easier to follow.

Statistics suggest that Sanford's assertion that the Universal Protocol is ineffective is right. PPM's statistics show that the number of wrong site surgeries actually increased following the adoption of the Universal Protocol. Other studies made similar findings.

Given this, it is more important than ever for the patient to be an active participant in the process.

Originally posted at InjuryBoard by Brooks Schuelke

Time Out!!! Standard of Care for Avoiding Wrong-Site Surgeries, Part 3

Brooks Schuelke — Thu, 14 Aug 2008 08:54:00 GMT

Over the last few days we've been looking at the three elements in the standard of care for avoiding wrong-site surgeries. The first element is establishment of a pre-operative verification process. The second element is a pre-surgical marking of the spot.

And the third element, the focus of today's post, is the "TIME OUT." Before each surgical procedure begins, the surgical team is supposed to call a "time out" to confirm the patient's identity and the procedure to be performed, including the correct side and site..

For example, before a surgery, the surgeon should announce that "This is Fred Jones. He is here to undergo a replacement of the anterior cruciate ligament in his right leg. Does everyone agree with that?"

If there is any disagreement about the answer to the "time out" questions then the procedure should not be performed until the questions are resolved.

The "time out" is to be performed in the surgical room and must include the entire surgical team. The facility must also have a protocol established to resolve any differences or disputes about the answer to the "time out" questions.

And that's the three-step protocol for avoiding wrong-site surgery. It seems simple enough, yet wrong site surgeries still remain prevalent. Why? We'll look into some of those reasons in the future.

Originally posted at InjuryBoard by Brooks Schuelke

Something (Other than "X") Marks the Spot: Standard of Care for Avoiding Wrong-Site Surgeries, Part 2

Brooks Schuelke — Wed, 13 Aug 2008 08:14:00 GMT

Today, we continue looking at the standard of care for avoiding wrong-site surgeries. The first step is to establish a pre-operative verification process.

The second step in the Joint Commission Universal Protocol is to mark the spot for surgery in such a way that the mark is visible after the patient has been prepped and draped. For example, if a patient is having surgery on his right knee, there must be some visible mark on the right knee to note that it is the proper site for the surgery.

Perhaps the most important part of this protocol is the specification of when it is performed. The protocol specifies that the mark should be made before the patient is taken into the surgical room. The mark should also be made with the participation of the patient (who is usually well informed about the procedure to be informed) so it should be done before any pre-op anesthesia is given. If the patient is unable to participate, then the surgeon should seek participation from someone close to the patient that is familiar with the procedure. This participation by the patient is one of the most effective ways, in many surgeries, to make sure the right procedure is performed.

The protocol specifies that the mark must be clear. A surgeon shouldn't use something ambiguous like an "X," which might also mean "don't do the surgery here." The mark should also be placed by the surgeon (and not delegated --- though the rule does allow for that possibility), and the mark must be placed in such a way that it will remain in tact after the skin is prepped for the surgery.

There are some exceptions to the marking rule. A surgeon doesn't have to mark a site that is a single organ site (for example, a c-section). And dentists are excused from the marking requirement since there is no effective way to mark teeth. However, dentists must take some precautions to make sure that the proper procedure is being performed.

Tomorrow we'll take a look at the third and final element of the protocol.

Originally posted at InjuryBoard by Brooks Schuelke