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Mind the Cap

AIR DATE: Monday, September 29th 2008
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How medical liability affecting both the price and the availability of health care around the state?

Last December, the Oregon Supreme Court found that employees of public agencies are not immune from negligence claims, effectively eliminating OHSU's cap on malpractice claims. Today, a federal judge announced that the hospital is settling six medical malpractice cases for more than $38 million. Jordaan Clarke, whose family brought the successful challenge to OHSU's old liability protection, will get $9.3 million.

These settlements come on the heels of a rare agreement between OHSU and the Oregon Trial Lawyers Association that they'll send to the 2009 legislature as proposed changes to the Oregon Tort Claims Act.

Under the agreement, the per-claim malpractice limit would be set at $1.5 million in 2009 (increasing to $2 million by 2014). This is well below Jordaan Clarke's $9.3 million, obviously, but well above the original cap of $200,000.

How do these caps -- at $200,000, or $2 million, or the sky's the limit -- affect both the price and the availability of medical care around the state? And what's the right balance between holding negligent health care workers responsible and keeping the cost of health care from skyrocketing?

GUESTS:

Tagged as: malpractice · ohsu · tort

OHSU and the Oregon Trial Lawyers Association have reached an accommodation between themselves that is only a recommendation to the Oregon Legislature, and thus far has met a tepid response.

The initial process problem is that OHSU presumes to impose on cities, counties and other local governments its judgment as to what is a fair and workable cap on ALL public entity liability, not just its own. It has cut its own deal with the trial lawyers without bothering to ask much less include local governments in discussions with the trial lawyers. That process took place in strict secrecy, without considering the needs and interests of important stakeholders such as the legislature itself, the Governor, and local governments across the stae.

In June, the leadership of the Oregon Legislature created a joint interim task force to study and make recommendations to the next Legislature on how the Oregon Tort Claims Act might be changed. The task force included Richard Lane, a prominent trial lawyer from OTLA, and Steve Stadum, Executive VP of OHSU. It also included a local government representative (myself, an assistant county counsel from Washington County) and a health care advocate (Maribeth Healy, Executive Director of Oregonians for Health Security). These four non-legislators, along with five state senators and five state representatives, have been meeting publicly since June.

As the local government representative on that task force, I have taken my role very seriously, meeting and discussing the impact of the Clarke case and possible legislative changes with individual lawyers, risk managers, and others from cities, counties, districts, insurers, and, yes, even OHSU.

Although OHSU is clearly an "instrumentality" of the State of Oregon, it is, in many important ways, autonomous. It does not participate in the State's risk management program. Its losses are not paid by the taxpayers as such. It is the largest state "instrumentality," being big enough and independent enough that it has created its own "captive" insurance company in the Bahamas (soon to be moved "inland" to Arizona). It does not rely on income taxes or property taxes to carry out its important mission, but rather charges fees to patients, solicits grants from various public and private sources, gets investment revenue from contributions to its "OHSU Foundation," sells its own bonds, and receives only a small amount of its overall budget from the state, primarily to help fund educational programs.

The focus of your program Monday is on one very narrow portion of the question of public entity liability in Oregon, and its cost to small entities such as school districts, cities, counties, and special districts who are not the largest single state "instrumentality" in Oregon, and who are facing turbulent economic times ahead. I urge that you broaden your focus to present the full context of Clarke and the possibilities for legislative action.
BillBlair —
BillBlair,

Thanks very much for your guidance. We'll definitely broaden the conversation to include more than just OHSU's role in this.

For other folks, if you're curious to learn more about "instrumentalities" -- I was! -- you can find a fair amount in the OR Supreme Court's Clarke ruling:

http://www.publications.ojd.state.or.us/S053868.htm
David Miller —

this blog post is very encouraging to people who want to know these topics.

http://helpgodme.hpage.com/

helpgodme —
Good morning,

I am a physician practicing in the public system in Oregon. I completed my residency training at OHSU. I think the cap is an important for our system to ensure we keep control of health care costs. I am admittedly not an expert on health care financing, but I have followed closely the public dialogue since 1995 when OHSU changed from a Public to a semi-Public institution.

I think you need to clarify what the liability cap covers -- damages, pain and suffering, punitive charges? What did it cover before, what is it covering after? When you talk of the care of patients that will suffer because of mistakes, as in the neonate presented in the preview, wouldn't 'medicaid' cover all of the health bills? Do we really need to have additional compensation?

It would be helpful to also discuss whether or not OHSU still maintains in spirit and practice the role of a 'public institution.' I have had increasing difficulty getting poor and uninsured patients access to specialists at OHSU. The barrier -- 'if you don't have insurance, we won't see you.' That in my mind is not how a public institution should behave. If they act like a private institution, should they not have to pay the same operating expenses as private institutions.

The program starts shortly so will send this email as is.

Douglas Lyon MD
Douglas Lyon —
There should not be a cap on medical malpractice awards. If OHSU makes a mistake that causes somebody to be severely disabled for life, then OHSU should pay to support that person for the rest of their life.
Jesse42 —
I was a patient at OHSU 2 years ago. The physician I had left me physically damaged for the rest of my life. The so called Dr. that I had didn't even come and talk to me after he had botched my surgery. He just kind of disappeared into the background, and slithered away like the snake he is. I not only want reimbursement for my stay, I want that Dr. gone. There is no way that there should be a cap of $1.5 million. Each case should be taken on it's own merit. I might not deserve 9 million, but his botched surgery has ruined my life, and that is worth a lot more than 1.5 million
cris2lyn —
Single payer health care can lead to the elimination of mere negligence medical malpractice. I'm a former Personal Injury Atty, creation of universal health care will eliminate need compensatory damages- the rest can be obtained by a work comp type system) and the drain by the greed players (Insurance, Big Pharma and Profit Hospitals & Clinics) and you can save nearly half your health care dollar.

Gross Negligence (e.g., oops, wrong leg) and intentional torts (drunk surgeon etc) can still be handled by a regular system- but would shield entities unless they engaged in cover-ups and assessory behavior.
Fireslayer —
Single payer health care can lead to the elimination of mere negligence medical malpractice. I'm a former Personal Injury Atty. Creation of universal health care will eliminate most compensatory damages- the rest (pain, earnings) can be obtained by a work comp type syste. End the drain by the greed players (Insurance, Big Pharma and Profit Hospitals & Clinics) and you can save nearly half your health care dollar.

Gross Negligence (e.g., oops, wrong leg) and intentional torts (drunk surgeon etc) can still be handled by a regular system- but would shield entities unless they engaged in cover-ups and assessory behavior.

And yes, there will still be enough money in the system for health care professionals to earn six figure incomes.
Fireslayer —
Complex issue. On one hand when a consumer is injured by negligence there should be recompense.

On the other hand, the cost of negligence is passed on to consumers, and the health care industry becomes more averse to providing care because the specter of malpractice makes them paranoid.

While I don't believe in caps, I don't believe in "sky-is-the-limit" awards either. Compromise is required.

Perhaps the health care industry needs to be modified so that fewer mistakes are made. A relative was in the hospital for the last month of her life and I was astounded that the nurses worked 12-hour shifts. Tired and stressed nurses and doctors make mistakes.

With the complexity of patient cases and the number of patients per nurse, I gained tremendous empathy for nurses and doctors who have to keep all the patient balls juggled in the air. Plus, they have to tolerate relatives of patients who are in emotional distress.

Generally, health care professionals try and do an excellent job but maybe we need to provide them a less stressful work environment with better checks and balances to insure patient safety. Fewer mistakes will insure less malpractice and should decrease health care costs.
trurl9 —
Thank you for bringing up this point. My husband is a fourth year medical student at OHSU and 14-18 hour days are not unusual. We have talked about the resident workweek caps (80 hours) but every person I speak to says that there are ways around this (residents taking home call and receiving upwards of 100 pages). I feel immense frustration that new doctors are forced to perform under such stressful conditions and I feel real concern for the patients.
Amberk —
About ten years ago, I suffered an allergic reaction to some medication. I rushed to the nearest emergency room, which was OHSU. While there, the emergency room staff immediately place an IV in my arm, presumably a saline solution. I was seen shortly afterward by a physician that also had an entourage of student nurses with him. He questioned me breifly, then instructed one of the nurses to administer epinephrine to me, a standard procedure for allergic reactions. The nurse did so, however she injected it directly into the IV instead of into the skin as is standard practice. That was the equivalent of a very high dose, which resulted in an excruciatingly painful burning sensation as the epinephrine worked its way through my body, and my heart rate increasing to an extremely high rate. This lasted for approximately five minutes, but it seemed much longer to me. I survived (obviously), and when I was finally able to open my eyes (I held them tightly closed until the burning subsided)I saw the physician standing there with the heart shock paddles ready to jump if necessary.
It was an experience I will long remember. The physician was mortified and so apologetic; he called me at home several times afterward to ensure that I was okay. And he explained that he and his nurses were coming off of a long night on the floor and were very tired, that perhaps his judgment was impaired and he failed to say the word "subcutaneous" (under the skin) to the nurse, and so she just administered the epinephrine in the easiest method available, in the IV.
I probably could have made a case out of this as my heart could very easily have been damaged in the ordeal. There may yet be some residual affects that I do not yet know about, and probably will never be able to connect to this event. But I feel that he was acting in the best faith that what he was doing was to help me. I felt that making a case out of the issue was not in the best interest of myself or greater society. I may make a small monetary gain, but I would possibly be helping to deprive the hospital and society of a potentially good doctor, one that I may need in the future. I felt that the normal internal review of the incident would be enough to ensure that any necessary corrective actions would occur.
mftovey —
I think this perhaps illustrates the idea that many malpractice claims or suits come out of feeling treated poorly by their doctor. Your doctor admitted quickly that a mistake was made and made every effort to apologize and make sure you were okay. Had he been rude or callous about your pain, you may have felt differently. With cases like Jordaan Clarke's, of course, no amount of apologizing would make him or his family whole, but doctors should realize by treating their patients with a great deal of respect, they quickly (and cheaply) decrease their risk of being sued.
scarlettl —
I think that OHSU is at significant risk compared to other hospitals. I am a physician at OHSU and we are the regional referral center. This means that we get the most technically challenging and difficult cases that cannot be done elsewhere. As such, OHSU is certainly at higher risk than other local hospitals. We provide services not available elsewhere in the state (heart transplant, liver transplant, and certain subspecialty procedures). I am afraid that if a more reasonable cap in place, then there is a risk that these services will no longer be availabe inthe state.
pdxgirl —
Mr. Blair's is a very narrow focus. The larger issue that OREGON needs to REMEDIATE asap(!) is a complete overhaul of the medical/dental monitoring system at the top:Gov.,( his advisors) who recommend names for Board of Medical Exam., the RN Board, Dentistry... ALL of the Boards. These Boards are supposed to be the consumer protection experts for patients who receive care in this state. They are the ones who are supposed to protect OR's patients from the providers who are incompetent, corrupt, and harm patients daily.
In my personal experience, these Boards in the state of OR are serving as protectors/defenders of the practitioners who continue to do harm with impunity...it's the fox guarding the hen house story.
In addition to the Boards who are failing their duty to protect patients, the State of Oregon needs to put their Practice Acts in Order, bring Oregon medical providers up to date (ignorance is not bliss nor is it an excuse since internet access is available). What is lacking, especially for all of the medical providers, is a REQUIRED, AUDITED, MANDATORY , consistent- across- specialties, continuing medical education.
Please go to the OR gov't web site and review the following sections of OR laws governing Med/Dental Professions. As I read requirements for each specialty, I found a MESS. There's no consistency; the ONLY medical providers that are required to have continuing professional education to keep up with changes that are rapidly occuring are PODIATRISTS (ORS 677.837)
ORS409.500=general area Chapter 677=Regs for Medicine,Podiatry,Accupuncture
For Dentists=818.021.0060(40 hours CME every 2 yrs)
For Dental Hygienists=818.021.0070 (24 hours CME every 2 yrs)
For RNs=851.031.0060 ZERO CMEs (except for 20 min.)
*Podiatrists (Doctors of Podiatric Med.) are able, with at least 3 years of surgical residency after their 4yrs medical school, to perform foot and ankle surgery. If Board Certified, patients have a better chance of having a quality doctor--the spec.boards DO require mandated/tested CME
UNDER OREGON'S LAW, THESE MEDICAL SPEC. ARE REQUIRED TO HAVE 50 HOURS OF EDUCATION EVERY 2 YEARS, WHEN THEIR LIC. IS RENEWED.
*Medical doctors (MD/DO)ORS.409.500 ZERO CME is required (oh, after much begging by the Dept of Health, these arrogant people deigned to 20 minutes + 9 hours...OVER A LIFETIME OF PRACTICE! Their position supported by Bd.of Med.Examiners and OR Med Assoc.)
*Pharmacists=20 hours (? period of time)




benditis —
trial lawyers only take cases where there is clear medicla negligecne b/c they only get paid if they win and the med mal cases costs tens of thousands to bringto court. OHSU acts like a private institition but wants public protection. I say let the jury decide if they made a mistake and they should then pay like any other tortfeasor
stevenmschoenfeld —
My sister won her medical malpractice lawsuit as an infant. She has cerebral palsy as a direct result of doctor error in her birth. My parents are getting older now, and I will soon be her primary care giver. Her life is dependent on her settlement.

It is unfair to her to cap that settlement at anything below what would have been possible for her to make in her lifetime if her life had not been completed destroyed by a doctor error. It is unfair to straddle me financially with 24 hour care for her without some sort of financial help from those responsible for her disability.

It is already more difficult than most people can imagine to deal emotionally with her disability. She will never hike Angel's Rest in the Columbia River Gorge. She will never swim in the ocean. She will never walk in waterfront park. She most likely will never marry. You can not put a cap on the loss of her potential.
TaylorS —
My husband is a fourth year medical student at OHSU so this topic is very important to us. OHSU receives about three percent of it's budget from the state. Despite that, a removal of the cap would cause an increase in an already incredibly high tuition. OHSU is a teaching institution which puts it in a unique position with respect to other hospitals in our area. It is also one of two level 1 trauma centers in Oregon. Also, OHSU takes patients regardless of ability to pay. I DO NOT support the removal of the Tort cap. The cost of tuition and our medical school loans have had a real influence on what my husband decided to practice- surgery. You can't practice primary care and hope to live a comfortable life if you have 200K in medical school loans.
Amberk —
I understand the importance of OHSU as a training hospital, but it's not all about the doctors, right? What about the patients? If a patient is a victim of a medical error, should the patient pay the price? Are medical errors a cost of doing business? If so, should the University not build that into it's budget? And if the costs are too high, then the University should be doing lots to prevent errors and work to minimize errors, lowering the risk to BOTH patients and the hospital.
scarlettl —
I wonder what they do in countries like Sweden, Great Britain, Canada, Cuba, France, China, India, Saudi Arabia, Norway, etc, about this sort of problem.
Tom D Ford —
Medical malpractice awards are a tiny fraction of medical costs. But preventable medical errors are a major cause of death in America. Accountability for medical negligence should not be sacrificed to the insurance-industry myth that malpractice cases are driving health care costs.
stevenovick —

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