If we want to improve health care in the United States, cut costs, and reduce malpractice litigation, “tort reform” -- now one of President Bush's top four priorities -- is the wrong place to look. The right place to look -- in fact, the first, second, and third place to look -- is the way doctors and hospitals practice medicine and the millions of things some of them do wrong each year that lead to bad, sometimes fatal, results. Cutting medical errors by 25 percent would save far more than any tort-law change Congress has considered, all without doing damage to our system of justice or the rights of victims.
The president, the Congress, insurance companies and most doctors have focused their attention almost exclusively on the problems that arise after medical errors have occurred and patients have died or been injured. Their solution -- federal legislation to restrict the rights of patients or their survivors to sue and recover for the damage done to them -- has passed the House but faces an uphill battle in the Senate. Tort-law changes that limit recoveries by victims might lead to lower malpractice insurance premiums for doctors, especially if they're coupled -- as they were in California -- with tough limits on the right of insurance companies to raise premiums. But caps on damages have perverse effects, including making it less likely that entire classes of deserving victims will recover anything for their losses. And as the Congressional Budget Office concluded in January 2004, such changes -- even if they do hold down insurance premiums -- will have an insignificant effect on total health-care spending. (Medical malpractice claims account for less than 1 percent of total federal health-care spending.)
The focus on lawyers and tort suits is a distraction from the primary problem. A real solution requires going to the root of the matter -- not malpractice suits but the malpractice and medical errors that turn patients into plaintiffs and cause more than $50 billion of damage and loss each year. In 1999 (the latest year for which statistics are available), the Institute of Medicine, a branch of the National Academy of Sciences, reported that medical errors in hospitals caused more than half a million injuries and the deaths of as many as 98,000 patients a year. The death toll in U.S. hospitals each year exceeds American combat deaths for the entire 12 years of the Vietnam War. The Institute of Medicine declared that medical errors are a bigger problem than several other major public-health crises: “Deaths due to preventable adverse events exceed the deaths attributable to motor vehicle accidents (43,458), breast cancer (42,297), or AIDS (16,516).”
Despite this epidemic of injury and death, Congress is not spending billions of dollars a year to fund research on prevention, as it does for cancer and heart disease. This year's budget for patient-safety research is a paltry $80 million. And recent reports suggest that very little has changed since the Institute of Medicine's 1999 study. Pennsylvania just completed the first state study of hospital-acquired infections, and found that more than 1,500 people died unnecessarily in 2004 alone. Even the state's conservative estimate, that 12,000 Pennsylvanians contracted infections during their hospital stays, would increase health spending by $2 billion. However, The Washington Post reported on July 13, “The actual tally could be as high as 115,000 infections, based on billing claims the hospitals submitted to insurers.”
Nationwide, extrapolating from the Pennsylvania study, as many as 100 patients died each day from hospital-acquired infections, and health-care costs were $50 billion higher than necessary last year. Nearly 500,000 Americans have been killed by medical errors over the last five years with no public outcry or recognition. The president, focused as he is on tort lawyers, has had nothing to say about it.
Happily, there is at least one success story in the fight against medical errors that is so dramatic that it ought to inspire every interested party to duplicate it. The only wonder is that it has received so little attention. On June 21, 2005, The Wall Street Journal reported on the remarkable improvement in the safety of anesthesia over the last 20 years, which has been transformed from a frighteningly perilous procedure into something much less risky. “Over the past two decades,” the Journal reported, “patient deaths due to anesthesia have declined to one death per 200,000 to 300,000 cases from one for every 5,000 cases.” You read that right: Anesthesia is 40 times safer today than it was 20 years ago.
How did this miraculous improvement occur? Unlike their colleagues in the rest of medicine, those at the American College of Anesthesiologists (ACA) recognized their problem and decided to tackle it. In 1985, they created a foundation to study patient safety and find ways to improve it. Collaborating with nurses, insurance companies, and medical-product companies, the foundation helped create and analyze a national database of incidents of injury or death from anesthesia. They documented recurring problems that sometimes had simple solutions, such as blood-oxygen detectors to tell whether trachea tubes were improperly inserted, or keeping patients warm to prevent tissue death. The ACA has developed standards of practice that incorporate the lessons learned. Failure to follow those standards can expose physicians to malpractice liability.
As the standard of care improved, medical errors, malpractice, and malpractice litigation have all declined. Anesthesiologists have cut their share of all malpractice claims in half, and the share of claims involving serious injury has also fallen. In the 1970s, more than half involved death or permanent brain injury; today, it is less than one-third. The effect on insurance premiums is another cause for celebration. As malpractice premiums for every other specialty have skyrocketed over the last two decades, they have fallen 37 percent for anesthesiologists, to an average of $22,572 per year.
The moral of this story is crystal clear: “Physician, heal thyself.” Rather than scapegoat trial lawyers and put their heads in the sand, physicians, hospitals, and insurance companies should commit themselves to ending the epidemic of patient deaths that is the real cause of the malpractice problem and a key contributor to rising health-care costs.
Ross Eisenbrey is vice president and policy director of the Economic Policy Institute.
