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Doctors' mistakes cause insurance 'crisis'.

Byline: JERRY SAGEN For The Register-Guard

MEDICAL NEGLIGENCE killed my wife, Mary Sagen, in 1996. She was 45 years old. Her young daughter, her mother, her brothers and I all miss her terribly.

An article in the Nov. 23 Commentary section by Dr. Glenn Keiper, a Eugene neurosurgeon, rails against the legal profession, the courts and "suit happy" victims for supposedly increasing the cost of medical malpractice insurance in Oregon. Keiper's column was glaring in its omissions, and it failed to address the real issue: Needless mistakes kill and injure a shockingly large number of patients.

Well-regarded studies reported in The Register-Guard estimate that misprescribed and over-the-counter drugs alone kill more than 100,000 Americans every year. Another 100,000 die in hospitals each year because of preventable errors. Injuries from medical negligence are estimated at 1 million.

With such an ongoing national crisis, one might hope doctors would join in the outcry for accountability and for safer medicine. What is the medical community doing to eliminate needless mistakes, which would be the easiest and most obvious way to cut malpractice insurance costs?

Medical safety advocate Dr. Sidney Wolf, director of Public Citizen, and Thomas Moore, author of "Prescription for Disaster," conclude that serious and fatal medical mistakes could be reduced by half or more. Recommended actions include mandatory reporting of all medical mistakes to the Food and Drug Administration on who is getting hurt and why; computer cross-checking at the pharmacy that could reduce drug interactions and prescription errors; and doctor prescriptions that are not handwritten.

The FDA estimates that only 1 out of 10 deaths or serious injuries are reported; however, many experts believe that it is closer to 1 out of 100. With mandatory reporting, the FDA would know more quickly which medical practices and procedures are safe and which are not.

The medical community admits it is reluctant to report medical mistakes to quality improvement groups such as the FDA, fearing that this information might be used against them. This seems like trying to justify a hit-and-run when involved in an auto accident.

Dr. Ole Hansen, mentioned by Keiper as a doctor who is leaving his medical practice because he can't afford malpractice insurance, prescribed an allergy and antibiotic drug combination to my wife despite its lethal potential. Mary died because of inappropriate prescriptions. Other safe and effective drugs were readily available. A jury of 12 Lane County citizens found Hansen 90 percent at fault in Mary's death, and held a drug company 10 percent liable. The jury found damages to be $925,000.

The Oregon Medical Association and its insurance companies lump cases like Mary's together with similar cases to argue that we are a nation and state in "crisis." Supposedly "suit happy" victims are seeking, in the words of the insurance industry, "jackpot justice." They refer to these cases as if they occur randomly - $17.5 million in one case, $8.5 million in another, $10 million in a third. Then there are unnamed settlements of $1 million or more.

They conveniently leave out the facts behind the cases: how people are maimed or killed by medical negligence, and the costs of the injuries to those people and to society.

The $17.5 million is from a case in Portland, where a woman became incapacitated because of a simple, preventable error. Doctors didn't check an X-ray, and the woman nearly died. She and her family face medical costs that range from $6 million to $8 million. She is permanently disabled and mentally incapacitated, a wife and mother who is a shell of her former self.

The $10 million case comes from conservative Jackson County. Because of the inaction of doctors, a man is a quadriplegic. His medical costs and lost wages alone were determined to be up to $8 million.

The $8.5 million case is from Roseburg, where a doctor's negligence led to the near death of an infant boy. He is severely mentally retarded. He can't speak or walk, and it's a major accomplishment for him to track an object with his eyes for a short period. His medical costs alone will be about $3 million to $4 million for his first 30 years of life. He's expected to live into his 40s, maybe 50s, long after his parents will be able to care for him.

Each settlement for $1 million is for an injury that is classified as "permanent major" by the Oregon Board of Medical Examiners, meaning that someone was paralyzed, damaged mentally, or both. Victims and their families face enormous medical bills and a loss of their quality of life. Do you think these people feel like they hit the "jackpot"?

Insurance companies and the medical establishment complain about these amounts. How much compensation do they think is adequate? Should victims eat porridge for Christmas dinner? Should survivors be forced to subsist on welfare, so that we, the taxpayers, pay the cost of medical negligence?

In a decision much criticized by Keiper and others, the Oregon Supreme Court ruled that victim compensation is, under American tradition and our constitution, to be decided by juries, not ever-changing, mercurial politicians and special interest lobbyists.

It is ironic that this debate takes place within weeks after state newspapers' business pages reported that Oregon hospitals are enjoying record incomes and profits. It is also ironic that the official journal of the American Medical Association last month published a study showing that patients in hospitals with lower nursing staff levels were more likely to die than patients in hospitals with an adequate number of nurses. Substandard care is sometimes a matter of the bottom line, with insurance companies and administrators worrying more about profits than about patients. With arbitrary caps on compensation, it can be cheaper to deliver substandard care than to correct the problem.

The civil justice system exists not just to compensate victims or survivors, but also to deter wrongful or substandard conduct. Maybe, instead of insurance companies aggressively fighting to keep from paying injured patients, the medical community should be honest with patients, admit a mistake when it has occurred, and offer fair compensation that covers necessary medical care and ensures that patients and their families maintain their quality of life.

Insurance companies claim that 70 percent to 80 percent of liability cases are dropped because they lack merit. I strongly disagree. Challenging the powerful juggernaut of medical, drug company and insurance industry interests is an uphill battle, even against the most blatant medical negligence.

The expense of litigation is overwhelming and intimidating to medical negligence victims and their attorneys. The medical industry lobbyists' term for the process - the "litigation lottery" - is inappropriate. It is true that, like a lottery, the system is stacked against the victim: The "house" (the medical industry) wins most of the cases. But a lottery is a voluntary game. Here, the injured do not get a choice. They have already paid a terrible price due to the negligence of a medical professional or institution. If they get "lucky," the responsible party pays their medical bills and maybe something more. Some lottery.

Thousands of people are killed or injured by medical negligence every week without doctors or hospitals disclosing it. Mary's death would still be a mystery had I not pressed for answers. It took 10 months of constant effort and the intervention of state Rep. Cynthia Wooten to obtain a blood test proving the cause of death. Then try getting a local doctor to testify on a victim's behalf. They share the same medical societies, the same liability insurance providers and the same hospitals, and are paid by the same health maintenance organizations. Would you call this a muzzle imposed by economic self-interest, or just a gentlemanly fraternity of silence?

Litigation is a negligence victim's only recourse in seeking accountability from the medical establishment. Are victims "suit happy"? No, they're "suit sad," because the insurance company would say seemingly anything to defend the indefensible.

For example, an expert witness testified for Dr. Hansen in the trial resulting from my wife's death. This expert said that he considered an allergy medication, indicated as the cause of death on my wife's death certificate, to be a wonderful and effective drug. He said this two years after the drug was withdrawn from the market because of FDA safety concerns. This expert also testified that people loved this drug so much that they traveled to Canada to obtain it after it was withdrawn from the U.S. market. Was he unaware that this potentially lethal drug was withdrawn from the market in Canada three months before withdrawal in the United States? Or was this just a little exuberant exaggeration for the home team?

Does the Oregon Board of Medical Examiners care about this elastic testimony? The agency bills itself as the protector of health care consumers in Oregon. What would trigger a board investigation of a doctor? Would prescription errors of potentially lethal drug combinations, some within the FDA's "black box" warning, the highest alert, be enough? Could a jury finding of negligence in wrongful death do it?

The profession's failure to regulate itself is critical. At least the insurance industry is willing to regulate, by increasing premiums for negligent doctors.

According to Public Citizen President Joan Claybrook, "In reality, a small percentage of doctors (5 percent) are responsible for the bulk of malpractice (50 percent) in the United States, and only better oversight by state medical boards, not draconian limits on patients' legal rights, can reduce the tens of thousands of deaths and injuries they cause."

Mary died Dec. 31, 1996; the jury verdict in the matter of her death was Oct. 24, 2001. The state Board of Medical Examiners has not investigated any medical negligence aspect of her death.

How dare doctors who earn in excess of $500,000 a year advocate that their one year's labor is worth more than the lifetime loss of a relationship with a spouse or child? Which would the public choose: to limit noneconomic compensation to people injured by medical negligence to $500,000, or to limit doctors' income to that same amount? Either choice is wrong. It's wrong to limit juries to an arbitrary amount of compensation, and it's wrong to limit physicians to an arbitrary amount of income. Neither serves the public.

Doctors in states that have recently imposed arbitrary caps on compensation have been surprised to learn that their insurance premiums have not gone down. While insurance costs will go up and down with the financial markets, the root problem is the sheer volume of people harmed by substandard medicine.

Medical errors are out of control, costing countless lives and dollars. Medical safety experts tell us the solution for this epidemic is at hand, but the health industry juggernaut lobbies against it.

Doctors may no longer control their practices, but the health maintenance organizations and big drug companies don't own their souls yet, do they? Are doctors still the best and the brightest? Will they break away from this madness and join us in working together to reduce the

frequency of medical mistakes?

Doctors must begin by remembering the most sacrosanct of medical principles: First, do no harm.

Jerry Sagen, a lifelong Eugene resident, is a local real estate broker.
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Title Annotation:Malpractice: Physicians should be working to eliminate unnecessary errors instead of blaming "suit happy" victims.; Columns
Publication:The Register-Guard (Eugene, OR)
Article Type:Column
Date:Dec 15, 2002
Previous Article:Proximity to campus, lifestyle lures most.
Next Article:Letters in the Editor's Mailbag.

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