Vested Interest - News and Notes - September 2003 Issue

Americans Fail to Get Recommended Care

Doctors fail to take nearly half the recommended steps for treating common illnesses such as high blood pressure and diabetes, suggesting that health care in the United States isn’t nearly as good as many people thought, researchers say. Treatment guidelines, many written by medical specialty organizations, outline recommended approaches to many common ailments, ranging from painkillers and exercise for arthritis to surgery for breast cancer. However, the guidelines are often ignored, indicating that even people who have good insurance and doctors they like don’t always get the best care. The Rand Corp. led the study published in the New England Journal of Medicine. (ATLA Law News Digest – June 26, 2003)

New Residency Rules in Effect at Hospitals

New standards issued by the Accreditation Council for Graduate Medical Education went into effect on July 1 to limit resident’s hours worked to 80 per week. The new rules are in response to growing evidence that exhausted young doctors burn out and make too many mistakes. Residents must: (1) work no more than 80 hours per week, averaged over a four-week period. (Hours do not include reading and preparation time; (2) have one continuous 24-hour break out of every seven days, averaged over a four-week period; and (3) be provided with a 10-hour break between shifts. (AP – July 1, 2003)

2002 Highway Fatalities at Highest Level Since 1990

The NHTSA released its 2002 highway fatality statistics showing fatalities reached their highest level since 1990. In noting 59 percent of those killed were not wearing seat belts and 41 percent of the fatalities were alcohol-related, Transportation Secretary Norman Y. Mineta urged states to pass tough laws prohibiting drunk driving and requiring the use of safety belts. (Liability & Insurance Week – July 21, 2003)

Senate Panel Approves Bill to Cut Medical Errors

The Senate Health, Education, Labor and Pensions Committee approved a bill to reduce medical errors. Under the compromise, reports of errors are to be released only in criminal cases and only if the court determines they contain evidence of an intention to harm. Also, the compromise provided medical employees who report the errors with whistleblower protection. The bill, S. 720, would authorize the Dept. of Health and Human Services to establish a national patient safety database so regional and national trends in medical mistakes could be tracked. (Liability & Insurance Week – July 28, 2003)

New Data Shows Medical Malpractice Filings Have Dropped over the Last Decade

The most recent data released by the National Center for State Courts (NCSC) finds that "the 1992 to 2001 trend in medical malpractice filings per 100,000 population has only fluctuated minimally, with an overall 1 percent decrease in per capita filing." Moreover, in its analysis of 5 years of data for 17 states, NCSC found that in 7, the filing decrease was even more severe, yet only one of the seven has a cap on damages for injured victims. The data is contained in the recently-released 2003 study, Examining the Work of State Courts, 2002: A National Perspective from the Court Statistics Project, a joint project of the Conference of State Court Administrators, the Bureau of Justice Statistics and the National Center for State Courts’ Court Statistics projects. It contains the country’s most accurate and comprehensive overview of state court litigation statistics. (Center for Justice & Democracy press release – August 11, 2003)

Pennsylvania Democrats Post Truths and Myths about Malpractice in State

Pennsylvania Senate Democrats put together their own fact sheet on the effects of increasing medical malpractice premiums for its' states' doctors. While states like Pennsylvania are often cited as an example of the medical malpractice "crisis" because of the mass physician exodus from the state, numbers paint a different picture. According to the National Practitioner Data Bank, the number of doctors in Pennsylvania increased 28.24 percent from 1990 to 2002 while the general population grew at 3.4% during the same time. A spokesman for the state’s largest medical insurer testified before the Senate Banking and Insurance Committee on March 11, 2003, that there is no doctor crisis. "The physicians may be retiring; they may be leaving," testified Dr. Brent J. O’Connell, medical director at Highmark, "but they are being replaced by younger physicians. We don’t detect any mass exodus of physicians in Pennsylvania."

Group Seeks Law on Window Switches

A child safety advocacy group will ask federal regulators to require safer power-window switches in cars and trucks. It’s an effort mostly aimed at U.S. automakers. Kids and Cars, a Kansas-based organization, says that since 1990, at least 26 children have been killed and at least 26 injured when power windows closed on them. Newer, safer switches must be pulled up to raise the window. European countries require power window switches that must be pulled up to activate. Asian carmakers use pull-up switches, but U.S. automakers General Motors, Ford Motor and Chrysler Group still have a mix of the newer switches and the older rocker or toggle switches. (ATLA Law News Digest – August 21, 2003)

GAO Report - Medical Malpractice Insurance: Multiple Factors Have Contributed to Increased Premium Rates

Congressman John Conyers, Jr. (D-Michigan), ranking member, committee on the Judiciary, issued the following statement concerning the GAO Report on medical malpractice: "Today’s report makes it clear that extreme, anti-victim tort ‘reform’ of the type proposed by the Republicans and President Bush will not resolve the insurance crisis but will simply serve to inflict greater harm on the victims of medical malpractice and wrongdoing by HMOs and drug companies." Among the information included in the GAO Report:

A complete copy of the report can be downloaded from the GAO website at www.gao.gov/atext/d03702.txt. For a copy of the ATLA fact sheet on the report, call Angela in the ITLA office. (ATLA Law News Digest – July 31, 2003)

Health Industry Sees a Surge in Fraud Fines

The Federal Government is on its way to collecting a record amount of fines and settlements from the healthcare industry this year. In the last three fiscal years, the government has amassed $4.21 billion in fines, settlements and restitution payments from its healthcare investigations - well over the $3.29 billion it collected in the prior 10 years combined, according to the U.S. Department of Health and Human Services Office of Inspector General. So far this year, the federal government is poised to collect more than $2 billion in payments, and more settlements are expected. Schering-Plough Corp. has been under scrutiny for everything from how they manufacture and price drugs to how they pitch their products to doctors and report data to regulators on patient deaths and injuries. (ATLA Law News Digest – August 21, 2003)

Plaintiffs Face Hurdles Proving Liability

The economic harm caused by the blackout will be enormous, and plaintiffs will face substantial hurdles. In New York and most other states, people suing utilities must prove more than negligence. In a case arising from the July 13, 1977, blackout that left most of New York City in darkness for 25 hours, the New York Court of Appeals held that the defendant, Consolidated Edison, "cannot be held liable for interruption of service due to the ordinary negligence of its agents and employees." Rather, plaintiffs were required to prove either willful misconduct or "gross negligence," which means, the court explained, "the failure to exercise even slight care." Some customers were able to prove it. The utility’s misconduct, the court said, included poor staffing decisions and its employees’ failure to reduce voltage after lightning hit the electrical system. (ATLA Law News Digest – August 21, 2003)