Medical-review panel a way to avoid legal responsibility

March 17, 2014 

Sen. Ray S. Jones, a Pikeville Democrat, is an attorney.

  • At issue: March 3 commentary by Dr. Andrew H. Henderson, "Meritless lawsuits weaken health care"

In response to the March 3 commentary, I'd like to address a few of the writer's points. But first, let me make it clear: We should not do one single thing to make it more difficult to hold wrongdoers accountable. We should wonder why there aren't more lawsuits against health-care providers, not fewer.

Health-care providers should follow the lead of Captain Chesley "Sully" Sullenberger, the pilot who landed his distressed airliner in the Hudson River a few years ago without the loss of a single life. He is taking on a new cause: He wants to apply the same safety principles from aviation to health care.

A 2013 Journal of Patient Safety study estimates that there are between 200,000 and 400,000 deaths by preventable medical error in the United States every year. Even considering the low estimate of 200,000 deaths, Sullenberger says that number is the equivalent of crashing three passenger planes every day with no survivors.

"If anywhere near that number of people were dying each year in air disasters, planes would be grounded and a presidential commission launched to address the situation," he says.

It is estimated that there are at least 2,700 preventable medical-error deaths in Kentucky each year. Yet there were only 498 claims of malpractice in 2013 (which also includes injuries that did not result in death).

And according to the Kentucky Department of Insurance statistics, over the last 10 years four percent of doctors are responsible for 40 percent of malpractice. It is also estimated that one in three hospital admissions experience a medical error.

Now, let me address the doctor's aguments for medical review panels.

Health-care providers and nursing homes want to reduce accountability by requiring victims of negligence to go before a biased panel to determine if one of their own has done something wrong. Talk about the fox guarding the henhouse.

There is a story from Indiana where panel doctors found against a resident who had been badly harmed in a nursing home. They said it wasn't the nursing home's fault because it was understaffed. Whose fault was it then? The residents?

Practically speaking, the evidence from Indiana suggests that if a panel finds against the harmed person, its findings cannot be overcome in a court of law. The reason health-care providers want it is to make sure that they have three experts to come to court and testify for them. In Indiana, a study showed that it took almost two years for a panel to complete its work, despite having the same timeframes in their law that are in Senate Bill 119.

The big nursing-home chains keep mentioning a lawsuit where a Kentucky nursing home with no stairs was sued by a resident who supposedly fell down the stairs. First, that case is 16 years old; and second, the drafting of the complaint contained an unfortunate error that was corrected.

At least seven states have repealed their medical-review panels and five other states have found them unconstitutional. Proponents of this type of legislation use the tired argument that we must pass this type of legislation to increase the number of health-care providers in the commonwealth.

A study just released shows that the most glaring shortages of health-care providers in metropolitan cities are in California and Texas, states that have had limitations on medical negligence cases for more than 40 years and 10 years, respectively. Kentucky has more doctors per capita than either California or Texas.

The taxpayers, through Medicaid and Medicare, must pay for injuries at the hands of nursing homes and other providers. For instance, once a patient develops a pressure ulcer (which is almost totally preventable), the resulting cost to treat it is $20,900 to $151,700.

Overall, pressure ulcers cost $9.1 billion to $11.6 billion in medical care each year. Some studies show that, in the United States, costs associated with treating all preventable medical error is $1 trillion.

My wife and sister-in-law are both doctors and they agree that we must focus on patient and resident safety and reduce the numbers of preventable errors that lead to the deaths and injuries of our loved ones.

Let's get on board with Sullenberger and find a way to reduce the number of preventable injuries and deaths in our commonwealth. Denying justice to those injured and killed will do absolutely nothing to improve patient and resident safety.

Sen. Ray S. Jones, a Pikeville Democrat, is an attorney.

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