LIABILITY UPDATE by Donna Baver Rovito

4.....New York Sun
Clinton, Obama Ally on Medical Errors
By JOSH GERSTEIN
September 29, 2005

((Kudos to Douglas Wojcieszak and his "Sorry Works!" coalition for getting this far in the political process....personally, I'm a little nervous about the intentions of the two Senators who've elected to support it at the national level, as both have opposed other, proven measures to reduce frivolous lawsuits and ensure access to care, but it's good to see this initiative on the national stage.  It's important, though, that we don't let anyone convince us to abandon other attempts to solve the medical liabilty crisis even as support grows for this inspired measure...))

Senator Clinton has forged yet another high-profile political alliance, joining a rising star in the Democratic Party, Senator Obama of Illinois, to introduce legislation encouraging hospitals and doctors to admit to medical errors.

Mrs. Clinton yesterday billed the measure as a way to break the stalemate over medical malpractice reform, but some tort reform advocates said they suspect the approach, which is supported by trial lawyers, may serve to fend off more substantive limits on jury awards.  ((And they'd be right, I think...))

In a briefing and conferencecall with journalists, Mrs. Clinton said escalating malpractice insurance premiums are making the issue difficult to ignore. "We're dealing with a medical malpractice problem in our country that is jeopardizing patient safety," she said. "These high premiums are forcing many physicians to alter their practice of medicine, and they're leaving some patients without access to necessary medical care."

Mr. Obama said a 1999 federal study that found 98,000 Americans die from medical errors each year should prod Congress to act. "That makes medical error the eighth leading cause of death in the United States. That's just an unacceptable statistic," he said.  ((Sigh....like I said earlier, no matter how many times a "false fact" is debunked, they keep on using it...))

The legislation would establish a voluntary program for doctors and hospitals under which they would promptly notify patients and their families of medical errors. Victims of medical errors would have the option of entering into out-of-court negotiations, where they could receive an apology from the medical providers involved as well as financial compensation. If no agreement was reached within six months, the patient could file suit, but the apology and any offers of compensation would not be admissible in court.

Mrs. Clinton said the bill offers an outlet to escape the long-running debate pitting advocates of caps on damage awards against trial lawyers who contend such limits could leave the gravely injured without adequate compensation. "Senator Obama and I would like to break this gridlock," she said. "The debate we currently have over the caps on damages really is backwards. We should be looking at ways to help everyone improve patient safety."  ((The two are NOT mutually exclusive - and wasn't it the AMA and other physician groups which supported patient safety legislation that was recently signed into law?  The caps debate continues in the middle of increased patient safety initiatives all over the nation....))

At least 17 states have already passed legislation that allows doctors to make apologies for medical mistakes without worrying that their expressions of remorse could be used against them in court.  ((And isn't it sad that a law has to be passed to "allow" physicians to express regret for a bad outcome without fear of their entirely human expression of compassion being used against them in court?))

The new legislation was endorsed yesterday by the New York Medical Society and by an Illinois-based group that promotes the idea of apologies for medical errors, Sorry Works.

A spokesman for the group, Douglas Wojcieszak, called the concept "the elusive middle-ground solution." He asserted that most medical malpractice lawsuits are driven not by greed but by anger at unresponsive doctors.

Mr. Wojziecsak said that even without specific protection from the legal system, many hospitals are adopting the practice of a quick apology. While some lawyers warn doctors against admitting to errors, juries often return lower verdicts when they hear that a doctor or hospital apologized, he said.

Advocates for tort reform were lukewarm about the proposed law. A proponent of a malpractice reform measure that passed in Illinois last month, Edward Murnane, said he has no objection to promoting apologies but doubts the federal bill would have much financial impact. "That kind of legislation is not going to cut down the number of lawsuits, and it's not going to cut down costs," he said, taking issue with the studies that have shown a reduction in malpractice payouts at hospitals that encourage apologies.

Mr. Murnane also asserted that the new legislation could be a ploy by trial lawyers to stave off broader reform. "The fact it's supported by the trial lawyers would suggest there's a lot more to it than meets the eye," he said.  ((What he said....))

A spokeswoman for the American Trial Lawyers Association, Chris Mather, said her group is reviewing the legislation.

In recent months, Mrs. Clinton, who is considering a run for the presidency in 2008, has drawn attention for her health care-related work with prominent Republicans, such as Majority Leader Frist and a former House speaker, Newt Gingrich.

Yesterday's foray with Mr. Obama also turned heads. "This is a powerful partnership," a political analyst with the American Enterprise Institute, Norman Ornstein, said. Mrs. Clinton is again reaching out to her right in one respect. Mr. Obama voted for the class action reform legislation that passed earlier this year, while Mrs. Clinton voted against it.

Mr. Ornstein said he expected Mr. Obama to be discussed widely as a vice presidential candidate but not selected, at least in the coming race. "He's got national candidacy written all over him. I suspect it won't be in 2008," he said.

5.....BCBS HealthIssues.com
MEDICAL ERRORS: Rodham Clinton, Obama Propose Disclosure Program
September 29, 2005

Sens. Hillary Rodham Clinton (D-N.Y.) and Barack Obama (D-Ill.) on Wednesday introduced a bill (S 1784) that would provide liability protections for physicians who disclose medical errors and offer to enter compensation negotiations with affected patients out of court, CQ HealthBeat reports (CQ HealthBeat, 9/28).

The bill would establish the National Medical Error Disclosure and Compensation program, which HHS would administer (Rodham Clinton release, 9/28). Under the program, health care providers would report patient injuries to a designated officer who would determine whether those injuries resulted from a medical error. In the event that a medical error occurred, providers would explain the incident to patients, offer an apology and enter into compensation negotiations. The apologies would remain confidential, and patients could not use them as an admission of guilt in legal proceedings (CQ HealthBeat, 9/28).

The program is modeled after similar smaller programs, such as a University of Michigan Hospital System program (CongressDaily, 9/28). The UMHS program has reduced the number of pending lawsuits against the hospital by half and has decreased the average defense litigation cost by $30,000, Obama said, adding, "We want to build on the results of the local level and make it national" (CQ HealthBeat, 9/28). Richard Boothman, chief risk officer at UMHS, said, "The approach has contributed to sharp reduction in claims, sharp reduction in transaction costs, sharp reduction in insurance costs and sharp reduction in the time it takes to address patients complaints" (CongressDaily, 9/28).

No Damage Cap
The legislation would not cap damages in medical malpractice lawsuits, a provision included in a House bill (HR 5) that passed in July but has stalled in the Senate (CQ HealthBeat, 9/28). The American Medical Association supports the House bill, which would cap noneconomic damages in malpractice lawsuits at $250,000 (CongressDaily, 9/28).

According to a Rodham Clinton release, Consumers Union, the Joint Commission on Accreditation of Healthcare Organizations, the Sorry Works! Coalition, the Medical Society of the State of New York and PULSE support the Rodham Clinton-Obama legislation (Clinton release, 9/28). American College of Obstetricians and Gynecologists also released a letter that endorsed the bill, but the letter said that the group also would continue to support caps on damages in malpractice lawsuits (CongressDaily, 9/28). Obama said that he hopes the liability protections included in the legislation will lead to bipartisan support in the Senate.

Comments
Rodham Clinton said that the bill seeks to reduce the number of malpractice lawsuits and help physicians avoid repeat medical errors. She added that many providers do not report medical errors under the current system because of concerns about malpractice lawsuits (CQ HealthBeat, 9/28). Rodham Clinton said in a press release, "Patients and physicians are paying the price for a health care system that discourages the kind of communication needed to find and correct the conditions that lead to medical errors" (Rodham Clinton release, 9/28). Obama said, "Instead of keeping patients in the dark, ... we should encourage honesty and accountability," adding, "When patients hear the truth, they sue less. The reward is the settlement, and health care professionals can learn from their mistakes" (CQ HealthBeat, 9/28).

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