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Don’t give tort reform too much credit

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The Ohio Department of Insurance reports that the number of medical-malpractice suits decreased from 5,051 in 2005 to 4,006 in 2006. Is this the result of the tort-reform law that caps noneconomic damages? Maybe, or perhaps what we are witnessing is the result of a national effort to reduce hospital errors. In 2005, the Institute for Healthcare Improvement launched the 100,000 Lives Campaign, a nationwide initiative to reduce preventable deaths in hospitals, with a goal of saving 100,000 lives over 18 months. This involved implementation of what are called the six best practices.

These include the use of rapid response teams, delivery of evidence-based care for acute myocardial infarction (heart attacks), prevention of adverse drug events and prevention of certain infections and ventilator-associated pneumonia.

The institute had estimated that nearly 15 million instances of medical harm occur annually in the U.S. That’s 40,000 per day. Medical harm is defined as physical injury resulting from or contributed to by medical care (including the absence of indicated medical treatment) that requires additional monitoring, treatment or hospitalization, or that results in death. Such injury is considered harm whether or not it is considered preventable, resulted from a medical error, or occurred within a hospital.”

A study prepared by the Institute of Medicine in 1999, “To Err is Human: Building a Safer Health System,” reported that between 44,000 and 98,000 people die in U.S. hospitals every year from medical errors, not from the medical conditions for which they were admitted. According to the institute, hospital error is the eighth-leading cause of death in America, with 7,000 patients dying annually from medication errors alone. Medical errors result in more deaths annually than motor vehicle collisions (43,458), breast cancer (42,297) or AIDS (16,516).

Examples of serious errors cited in the study include the wrong leg being amputated from a patient and an 8-year-old dying during minor surgery because of a drug mix-up. According to the institute, medical error is not caused so much by negligence as much as faulty systems, processes and conditions. Because most errors are caused by systemic problems, the push came for better procedures, which gave birth to the 100,000 Lives Campaign.

The initiative has worked. The Institute for Healthcare Improvement estimates that over 122,342 lives have been saved. Sure, this number is based on a calculus that the organization uses, and this success does not mean that people are no longer dying in hospitals, but participating hospitals report that better procedures are paying off. Success stories in the IHI 2007 Annual Report are many. University Hospitals Richmond Medical Center in Cleveland reports that cardiac arrests outside the intensive care unit have decreased by 60 percent. The Dominican Hospital in Santa Cruz, Calif., reports that it has had no cases of ventilator-associated pneumonia since October 2004. At the Immanuel St. Joseph-Mayo Health System in Mankato, Minn., deaths from heart attacks have decreased from 15.4 percent in 2002 to 6.4 percent in 2005.

So, maybe the real reason the number of medical-malpractice suits has declined is not tort reform but the 100,000 Lives Campaign. A decline in lawsuits might mean that fewer medical errors are being committed, but what if the decrease means, instead, that fewer medical errors are worth pursuing because of the damage caps imposed by tort reform? Is that necessarily a good thing? If tort reform is dissuading injured parties from pursuing claims for real errors, then it follows that some health-care providers are not being held accountable for their errors.

What connection to tort reform we can accurately make to the reduction in medical-malpractice litigation is a question I cannot answer. At the same time, I know this: According to the people who study the medical system, medical errors, though decreasing, are still abundant. Before anyone heralds tort reform, let’s take a close look at medical errors and what happens to those who have suffered as a result. Then again, perhaps the real goal behind tort reform was to shield health-care providers from liability, irrespective of fault.

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