 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
Harming Patient Access to Care: The Impact of Excessive Litigation
Subcommittee on Health
Ms. Lauren Townsend
Hello. My name is Lauren Townsend.
I am a Pennsylvania Board Member of USAction and Executive Director of
Citizens for Consumer Justice, Pennsylvania's largest consumer organization.
Both organizations are dedicated to an agenda of economic, racial,
social, and environmental justice. I'd like to thank the members
of the Health Subcommittee of the House Energy and Commerce Committee for
inviting me to speak today about HR 4600, the HEALTH Act of 2002.
Citizens for Consumer Justice
has become the state's leading organization working on quality, affordable, safe
health care for all, strengthening Social Security and Medicare, lowering
prescription drug prices for consumers, and passing a strong Patients' Bill of
Rights with a right to sue HMOs. As you are no doubt aware,
we in Pennsylvania have been mired for the last few years in a medical
malpractice insurance crisis that has been spreading across our country and is
the impetus for the introduction of HR 4600.
While we applaud members of
Congress like our own Pennsylvania Representative Jim Greenwood for wanting to
solve the problem through legislative means, we vehemently oppose HR 4600 which
we know will hurt victims of medical malpractice, immunize wrongdoers and be a
boon for the monolithic giant that should be the target of everyone's ire:
the insurance industry. Our Health Care System is Rigged for Failure
We patients are regularly
subjected to the "hassle-factor" when we seek health care.
We are either uninsured and find ourselves using trauma centers as
primary care facilities OR we have insurance and are put through the wringer to
get the care we need. Because of the advent and dominance of HMOs, and the
merger of hospitals that have become corner-the-market-giants, our relationship
with doctors is tenuous at best. Our
hands -- patients' and doctors' -- are tied because of administrative
bureaucrats who are calling the shots and making health decisions. The result:
"health care cost containment," a fancy way of saying cut
corners wherever and whenever possible. And
that means: blow through patients; avoid costly referrals to specialists; make
nurses work overtime; and don't modernize and streamline systems and procedures
to avoid mistakes. Doctors find themselves in an
awful predicament. They are told
how to practice medicine by administrators -- a veritable petri dish for
increasing the number of medical mistakes -- all the while finding the
environment for practicing medicine more difficult because of skyrocketing
malpractice insurance rates. Malpractice is Real and it Devastates Lives
According to the AMA, medical
errors are the 5th leading cause of death in this country.
It is the potential for (and reality of) these errors that compels
doctors and hospitals to have malpractice insurance in order to practice
medicine. At
a rally last fall, Pennsylvania victims of medical malpractice told their horror
stories and spoke out about the need for patient safety legislation and
continued access to the courts.
The individual stories that were told
by the rally participants were
sobering and dramatized how far behind Pennsylvania and our nation are in taking
steps to reduce the medical errors that result in so much unnecessary suffering: Jenny
Stephens
is a victim of serious dental malpractice.
Prior to May 19, 2000, she was a vibrant 40 year old woman,
fully articulate and pursuing a career as a speaker within her industry.
Today she suffers from facial
paralysis, a large hole in her mouth that continues to baffle specialists with
regard to restoration and chronic
pain for which she must take very expensive medication on a daily basis.
" Would it surprise you to
know,
" she told CCJ and members of Pennsylvania's state legislature, "that
the dentist who inflicted this life long impairment upon me had been under state
investigation for years prior to my seeing him?
Or that I was unable to reach this dentist
during the emergency he created because he was incarcerated and on a work
release program for multiple DUI arrests and convictions?
Worse yet, the insurance company who
referred
me to him had supposedly investigated his credentials, education, practice and
ability prior to accepting
him into their plan." After
talking about the need for real patient safety legislation,
Stephens said, "Although my personal experience
was a nightmare, I have learned one very important thing:
you never know. On May 19,
2000, my life changed forever and now encompasses challenges I never dreamt
possible. It could happen to you
or one of your loved ones.
It shouldn't happen to anyone. " Donald
Davis,
a medical malpractice victim, used to work as the manager at a local Home
Depot. In September of 2000, Davis
went to a doctor to have a bone spur removed from his right baby toe - it
should not have been a big surgery and he was expected back to work within a few
weeks. Because of a mistake on the
part of the doctor, the surgery incision did not heal properly, and became
gangrenous. Because of the infection he
had to have the toe amputated and needed bypass surgery in his right leg. By
January of that year he had developed a massive blood infection from the bypass
surgery. The blood infection
prevented him from standing or walking and was making him increasingly ill.
So not only had his doctor failed to treat a minor infection that caused
him to lose his toe, he failed to take care of the blood infection which almost
cost Davis his life. Davis said
" If I had not ended up finding a new
doctor, I would have
died because of the blood infection. But, unfortunately, the only way to save my life was to have
both my
legs amputated. .What happened to
me was the result of two doctors' errors, and it was preventable.
Because of my amputation, I've had to leave my job and my life will
never be the same. .I went in for
a problem with one toe and came out without my legs."
Bernadette
Hudack
is the mother of a three-year-old boy who suffers from
cerebral palsy and mental retardation. In
May of 1998, she came down with asthmatic bronchitis.
She had a terrible cough, congestion and shortness of breath.
She was also 32 weeks pregnant. On her first full day in the hospital
her
obstetrician ordered a test to evaluate the well-being of her baby and the test
indicated that the baby was fine.
During her stay in the County hospital (four full days), doctors
continued to treat her bronchitis. Unfortunately,
they neglected to monitor her oxygen saturation levels and neglected to monitor
the baby, until it was too late. Hudack
explained, "As
my own oxygen saturation level dropped, so did my baby's.
Finally, on my fourth day
in the hospital, a nurse repeated the test to evaluate the well-being of my baby
and realized that he was in
distress and needed to be delivered immediately. But the damage had already been
done. Hudack
hopes that after hearing stories like hers, that patient safety legislation will
be passed. When she spoke of the
mandatory overtime issue, she said " I
know first hand what it means for patients to be with tired
nurses who've worked more than the shift they originally came to work.
Because I AM a nurse." HR 4600 is not the Answer
On the contrary, HR 4600 will
further hurt already injured victims and will do nothing to foster patient
safety or lower insurance premiums for doctors:
Americans Need Insurance
Reform. In Pennsylvania, we've gone
from eight principle malpractice insurance providers to four in a very short
time. Industry experts, like
Charles Kolodkin of Gallagher Healthcare Insurance Services, tell us that
"a quick examination of the medical malpractice insurance marketplace might
lead a dispassionate observer to conclude this segment of the insurance industry
is confused, in disarray, and generally in a state of disorder. Premiums are
doubling, hospital deductibles are tripling, claims-free physicians are being
non-renewed, and insurers are leaving territories en masse. Simply put, the
market is in chaos." Kolodner tells us that
throughout the 1990s insurers were charging premiums at such low rates that when
the time came to pay losses (losses are when mistakes are made, doctors are held
accountable and patients are compensated for their loss and injury by the
responsible party's insurance company), the money
wasn't there. In large part this emphasis on increasing market share was driven
by a desire to accumulate large amounts of capital that the insurers could place
in higher risk, but potentially more lucrative, investments. Here are some good examples.
St. Paul, one of the nation's largest malpractice carriers, will no
longer write malpractice policies because of more than $1 billion in losses
nationwide. St. Paul also lost $108
million with the collapse of Enron. Two notorious medical
malpractice insurers, PIE and PIC, are no longer in business. Larry E. Rogers, according to the Cleveland Plain Dealer,
former President of the failed PIE Insurance Company, admitted that he stole
more than $6.8 million from the company to buy a pig farm in Tennessee and to
pay off gambling debts. He pleaded guilty in federal court to charges of
conspiracy, insurance fraud and tax evasion. Charges filed by the prosecutor
claim that the theft and Rogers' corporate spending helped sink the insurer in
1998, leaving many doctors without insurance or with higher rates when other
companies had to rush in to fill the void.
The collapse left doctors in nine states without insurance. According to
the Plain Dealer, "patients who might have collected millions of
dollars have been forced to settle for far less." In the last year, the list of
'impaired' medical malpractice insurers got longer as the Pennsylvania
Department of Insurance placed PHICO under official state scrutiny.
PHICO - run by the Hospital Association of Pennsylvania and one of the
largest writers of medical malpractice insurance - aggressively sold insurance
during the late 1990s. "Rehabilitation" was necessary as it became
obvious PHICO's premiums had been inadequate to cover losses. Citizens and Members of
Congress should not allow the insurance and health industries to play
divide-and-conquer politics by putting the blame of this crisis onto the backs
of patients through legislation like HR
4600 by limiting our access to the courts for malpractice that devastates,
shatters lives and all too often kills. Patients
harmed by medical malpractice should not be further penalized when they seek
justice. Instead, we should be
asking questions. If we're
attempting to get to the bottom of Enron and Global Crossing, why aren't we
getting to the bottom of the gross negligence and improprieties--and, yes,
accounting shenanigans--that exist in the insurance industry? Citizens for Consumer
Justice applauds members of the U.S. House of Representatives and its Energy and
Commerce Committee for calling for a General Accounting Office (GAO)
investigation of the insurance industry's role in creating such havoc for
doctors and ultimately patients. That's
what we should be doing: asking questions and demanding answers. Aren't the regulators of the
insurance industry supposed to head off problems before they become disasters?
Whose rates are too low? Whose rates are too high? What is responsible
pricing? And how will our nation's and individual state insurance departments
ensure that responsible pricing is enforced? In Pennsylvania, PHICO, run by
the Hospital Association of Pennsylvania, was put into rehabilitation after its
surplus dropped to dangerously low levels. Our Insurance Commissioner was
virtually absent while that was happening.
This was right on the heels of Reliance going under, a demise that will
likely cost Pennsylvania consumers billions of dollars. Insurance Departments
throughout our nation are supposed to regulate the insurance industry and
protect the insurance consumer. In addition, they are supposed to monitor
financial solvency, license agents/brokers, and review and approve rates and
forms, and coordinate the takeover and liquidation of insolvent companies and
rehabilitate financially troubled insurers. When they are confronted with a
PIC or a PHICO, do they investigate and get to the root cause of why the insurer
was in trouble? And, if so, do they then review the other insurance providers to
find out whether they are engaged in the same bad practices?
How often are independent actuarial reviews conducted? Why aren't
medical malpractice insurance rates, like auto and other lines,
experience-based? These are just
some of the questions that need to be asked and, more importantly, answered.
Also, the Joint Underwriting
Associations (JUAs) across the country and in some states, Catastrophic Loss
Funds or CAT Funds, are state run malpractice insurers. The JUAs around the
country have historically been seen as the insurers of last resort because of
high rates. However, the JUAs don't
have to charge such high rates. If we were to have a single-payer malpractice
insurance system state by state or nationwide (in the case of Pennsylvania, a
JUA with the CAT fund to handle the catastrophic cases) that is regulated by the
state and the federal government, the administrative cost of underwriting would
go down. With one payer, doctors'
premiums would go down, and having a centralized system would allow for
comprehensive monitoring of medical mistakes so that we can learn why and where
they happen and how we can eliminate them. What Congress Can and Should do to Promote Patient Safety
Real
Peer Review
Malpractice that injures patients cries out for strong sanctions from medical
review boards. Patients deserve to
be protected from chronic offenders
who continue to make avoidable, costly mistakes. Safe Rx
New technology and procedures
need to be adopted, particularly in hospitals, that automatically check
prescriptions against patients' records. Doctor/Nurse
Fatigue
Reasonable
schedules and staffing level ratios for doctors and nurses
will cut
medical errors. Nurses, for
example, should not be forced to work overtime. Access
to the
Courts
For those unfortunate victims of
continuing medical errors, access to the courts for redress must continue.
Without a legal system to hold
those who harm innocent patients accountable, the heavy financial costs
of their care will be imposed on taxpayers.
And that is all of us. Conclusion - Lower Insurance Rates by Regulating the
Insurance Industry
The culprit of the malpractice
insurance crisis is the insurance industry and our health care delivery system.
The system is rigged. Legislation
like H.R. 4600 further sabotages an already damaged system.
We know that passage of the so-called tort-reforms like caps and the
elimination of joint and several liability
in this bill wuld do nothing to eliminate preventable medical errors from
happening. Nor, as even the
American Insurance Association and the American Tort Reform Association have
admitted, would they reduce medical malpractice premiums. Instead, H.R. 4600 would
further hurt individual victims whose lives are already shattered from lost
babies, wives, husbands, eyesight, the amputation of limbs, the wrong
medication...the list goes on. What
we do know about limiting the non-economic compensation to $ 250,000 to a victim
who has lost a baby, had the wrong breast amputated, or had a pap smear
misdiagnosed, is that it is an arbitrary and paternalistic price tag hung on
another person's life. And this
is wrong. It doesn't make sense that
this legislation is being contemplated as a solution to skyrocketing insurance
rates when the Congress has not yet investigated the industry's justifications
or its accounting practices..and when the insurance industry itself has
admitted that we shouldn't expect "tort reform" to reduce insurance rates. The American Insurance Association (AIA), a major insurance industry trade group, said in a
March 13, 2002 press release that lawmakers who enact "tort reform" should
not expect insurance rates to drop. Evidently issued to critique the Center for
Justice & Democracy's 1999 study, "Premium Deceit -- the Failure of
'Tort Reform' to Cut Insurance Prices," the AIA release leads
with an astounding face-saving pronouncement: "[T]he insurance industry never
promised that tort reform would achieve specific premium savings." What's more, in 1999, ATRA
President Sherman Joyce told Liability Week (July 19, 1999), "We wouldn't tell you or
anyone that the reason to pass tort reform would be to reduce insurance
rates." Victor Schwartz, ATRA's General Counsel, told Business Insurance
(July 19, 1999) that "[M] any tort reform advocates do not contend that
restricting litigation will lower insurance rates, and 'I've never said that
in 30 years.'" "Premium Deceit" is
an exhaustive look at the impact of tort reform on nationwide insurance costs
between 1985 and 1999. It finds that tort law limits enacted since the mid-1980s
have not lowered insurance rates in the ensuing years. States with little or no
tort law restrictions have experienced approximately the same changes in
insurance rates as those states that have enacted severe restrictions on
victims' rights. The losers are
those patients--like Donald Davis who sought medical care for a problem with one
toe and came out without his legs--injured through no fault of their own. Citizens for Consumer Justice
applauds Representative Greenwood and the Committee for delving into a grim
problem facing our health care delivery system. However, we urge you to hold the real culprit accountable,
and not punish innocent victims of medical malpractice by advancing H.R. 4600. Thank you.
|
|||||||||||
|
