The time has come for liability reform

Medical liability in Massachusetts has become an extraordinary burden on our health care system.It produces years of litigation, financial inefficiencies, a culture of secrecy and a “blame game” mentality, plus unaffordable premiums for physicians. It is dysfunctional for physicians and patients.

Harvard School of Public Health Professor Michelle Mello has described it aptly: “For compensation, deterrence, corrective justice, efficiency and collateral effects, the system gets low or failing grades.”

The latest indication of the system’s failings comes from a survey of Massachusetts physicians about the practice of defensive medicine: tests, imaging, referrals, consultations and hospitalizations ordered by physicians out of the fear of being sued.

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How hospitals can respond to union organizing

The charges against Beth Israel Deaconess Medical Center detailed on the Eye on B.I. website are serious – overworked surgical interns, financial discrepancies, attacks on workers’ rights, inadequate charitable care as well as poor pay and poor working conditions.Whether or not these charges are valid, the Boston medical community needs to prepare itself for a new kind of union organizing.

See a related article: All eyes on BI?

“Any forward-thinking health care organization that thinks it could be targeted needs to be preparing for this,” said Ashley McCown, president of the crisis management firm, Solomon McCown & Co. “Don’t let the union define you as an organization. You need to communicate first.”

Since the goal of the union’s campaign is to undermine the hospital’s reputation with key constituencies, McCown said hospitals should review their vulnerabilities before a campaign begins.

Areas that are likely to become a union target include:

• CEO compensation.

Given the focus on CEO salaries amidst the current economic collapse, pay scales for top hospital executives are virtually guaranteed to be an issue during any negative publicity campaign, experts say.

• Malpractice and employment lawsuits.

McCown noted that virtually every hospital is vulnerable on the issue of malpractice suits and patient complaints.

“They need to have a message ready for when the union publicizes malpractice suits and patient complaints,” she warned. “They need to put those complaints in context and have a program up and running to address those concerns and bring improvement.”

• Real estate development and expansion plans.

Union organizers “will try to undermine the hospital’s credibility among legislators and permitting boards,” said McCown. “The best-known example of this was Yale/New Haven Hospital several years ago, when it was trying to build a new cancer treatment unit and needed state approval. SEIU held up the permitting process and launched an ad campaign targeting the hospital. It was a long, bloody corporate campaign.”

• Employee relations.

“Hospitals need to make sure they have open and direct communication with their employees – and make sure those connections are real,” said McCown. “They need to look honestly at the work environment and culture. If those relationships are not strong, they need to respond to that weakness before they are the target of a campaign.”

Hospitals also need to be sure they are getting the message out about the good things they are doing in the community.

“If they have been doing community work and conducting education programs, they need to make their key constituencies – legislators, regulators, donors, the general public and the staff – are aware of these efforts,” she said.

McCown notes that Levy has been extremely proactive in his attempts to counter the union’s characterization of the hospital as a patients-last institution.

In his blog, he includes dozens of e-mails from employees, interns and doctors from both inside and outside the hospital praising the working conditions at Beth Israel and expressing grave concerns about SEIU.

“Hospitals should start on the inside and work their way out,” said McCown. “It all begins with the employees.”

– Bill Ibelle

The SEIU’s latest tactic in organizing health care workers hits Beth Israel

During a recent fundraising event for Beth Israel Deaconess Medical Center, a flatbed truck pulled up out front carrying a mobile billboard inscribed with three-foot red letters – “Keep Your Eye on B.I.”

The billboard advertised a website of the same name, www.eyeonbi.org, that alleges serious problems with patient care and accounting practices at the hospital.

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Q&A: New model for medical liability system

Q:  Should the medical liability system be transformed into a new model that emphasizes safety, avoidable error, injury compensation and alternative dispute resolution?

“A more enlightened approach to medical liability would distinguish providers who generally drive toward quality improvement and safety. The potential for those providers to opt into a different compensation system would have the dual effect of treating patients and providers fairly while creating an incentive to become eligible for the ‘opt-in’ system. The new model ought to incorporate three salient features: a trustworthy evaluation to certify the provider infrastructure; transparent quality performance reporting; and a closed clearinghouse – not available to plaintiffs – to which providers in the alternative system must report what they have learned from circumstances that created harm.”

—Alice Gosfield, Esq., health lawyer, Philadelphia, Pa., represents physicians and group practices

“Changes in the medical liability system need to originate at the provider/institutional level, such as the system adopted by the University of Michigan Health System, whose approach is: ‘Apologize and learn when we’re wrong, explain and vigorously defend when we’re right, and view court as a last resort.’ Any changes should consider early non-binding evaluation by neutrals; reject caps for non-economic damages; adjust or eliminate the charitable immunity cap; and provide a more efficient, cost-effective method for resolving smaller claims.”

—Robert H. Astor, Esq.,
plaintiffs’ attorney, Springfield

“Studies about defensive medicine and the suggestion that there is a medical malpractice crisis shift the focus away from where it really belongs: the victims for whom medical error has been a life-changing event. A trial by jury is usually the last resort for those victims of medical error for whom justice is not offered or available. We should all strive for the day when medical errors are rare, readily acknowledged and victims are fairly compensated. For the foreseeable future, the trial court and jury system and the level playing field that they afford are many people’s last hope and only opportunity for justice.”

—Kimberly Winter, partner at
White, Freeman & Winter, Weston,
handles medical negligence cases and provider licensure.

“My approach to reforming the system would include: (1) a tribunal system more in keeping with the legislative intent, rather than a system that allows the plaintiff to get by so long as she presents a medical opinion letter; (2) a requirement that the defendant be notified 90 days before a suit is filed; (3) encouragement of open discussion of unfavorable medical outcomes by providing that ‘apologies’ be inadmissible in court; (4) limitation of  recovery against an individual physician to her insurance limits; (5) requiring that experts be board-certified in the same specialty as the defendant; and (5) a medical malpractice court with specialized judges.”

—John Bagley, partner at Morrison Mahoney, Springfield; represents
physicians

Doctors must prepare now for new identity theft rules

Under new federal “red flag” rules, health care entities and physicians will be required to implement procedures for preventing, detecting and responding to identity theft, according to attorneys.

Until recently, many entities, including health care providers, thought the red flag rules only applied to traditional financial institutions, such as banks.

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Hospitals fight off infections and lawsuits

Several recent developments indicate that hospitals may face increasing liability for infections that patients acquire in the hospital.

On Nov. 6, a Suffolk County jury awarded $13.5 million to a 40-year-old Hopkinton woman who died of a flesh-eating bacteria that she contracted during chemotherapy treatment at Dana-Farber Cancer Institute.

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