In the 27 years since switching from representing health care providers to injured patients I have reviewed over 20,000 adverse medical events. I have reviewed reports of injuries to nearly every major body part and organ; operations on the wrong foot, leg and organ; wrong-sided cranial and hernia procedures; premature deaths from delays in diagnosing and treating cancers and heart disease; prescription errors ranging from overdoses, under-doses, lethal combinations and abrupt discontinuances. I have seen patients seriously injured by health care providers struggling with alcoholism, drug addiction and a variety of emotional and psychological disabilities.
My experience has been consistent with the National Institute of Health’s conclusions in its 2000 publication, “To Err is Human.” The oft quoted study, conducted in part in Utah, found that “more people die in a given year as a result of the medical errors then from motor vehicle accidents (43,458), breast cancer (42,297), or AIDS (16,516).” The study concluded that “health care in the United States was a decade or more behind other high risk industries in its attention to ensuring basic safety.” They also concluded that it “would be irresponsible to expect anything less than a 50% reduction in errors over 5 years.”
In the 15 years since this pronouncement state legislatures have taken little if any action to reduce patient injuries. To the contrary, they have acted to protect health care providers from patients.
Both before and after the 2000 publication date, most state legislatures had or have enacted two-year statutes of limitation and four-year statutes of repose for medical malpractice claims. Most states require that, prior to proceeding to court, an injured patient must file a notice of intent. More recently, injured patients have been required to request and submit to a prelitigation review. Health care industry lobbyists assured legislatures that these measures would reduce the number of frivolous malpractice claims and help identify meritorious claims so that early and fair resolution could take place. The practical effect has been much different.
Many patients with legitimate claims fail to consult a lawyer within two years, believing they have four years to pursue a claim as in all other personal injury actions. Patients who attempt to bring claims on their own behalf or who retain inexperienced counsel are often thrown out of court because of their failure to comply with some technical tort reform requirement such as properly serving a notice of request for prelitigation hearing.
During these prelitigation hearings, which I have attended innumerable times, patients are often subjected to impolite and inappropriate questioning by physician panel members. Frequently, these panelists are personally acquainted with the accused health care provider. It is not unusual for prelitigation panel members to lecture injured patients and their lawyers about the impropriety of bringing a medical malpractice claim against one of their colleagues. Not surprisingly, nearly 90 percent of the time, prelitigation panels find in favor of the health care provider. The patient is then required to procure a sworn affidavit from a qualified physician or other health care professional that the patient’s claim has merit. Such affidavits are difficult to obtain when the medical records provided by the errant physician or health care provider are incomplete, inaccurate or incomprehensible.
An injured patient, who if fortunate enough to survive the prelitigation hearing process and obtain an affidavit of merit, must then endure three to four years of grueling litigation, costing on average between $30,000 and $70,000. Their claims are shackled by legislation prohibiting introductions into evidence of physician apologies, peer review records and incident reports detailing acts of carelessness and malpractice. In the event an injured patient is one of the lucky 20 percent that prevail at trial, the award of noneconomic damages is reduced to $450,000 or less, even in cases of unimaginable lifelong pain and suffering.
Over the past 30 years these and other laws have been implemented at the behest of health care providers and their lobbyists to provide protection from injured patients. During this same period of time most states, Utah included, passed little, if any, legislation to protect patients from careless or reckless health care providers. It is no surprise that in the 15 years since the National Institute of Health’s plea that medical errors be reduced by 50 percent little has changed. Rather than giving health care providers powerful incentives to reduce errors, Utah and other state legislatures have provided so many protections that physicians know or should know that it is highly unlikely they will ever have to account to injured patients. In its exuberance to protect doctors and other health care providers from “frivolous lawsuits,” legislatures have doctors shielded from even the most meritorious claims. Err is perpetuated.