Medical Errors Cost Economy $20 Billion

The Society of Actuaries is an educational, research and professional organization dedicated to serving the public, its members and its candidates. The SOA's mission is to advance actuarial knowledge and to enhance the ability of actuaries to provide expert advice and relevant solutions for financial, business and societal problems. The SOA's vision is for actuaries to be the leading professionals in the measurement and management of risk.

Findings from a new study released by the SOA estimate that measurable medical errors cost the U.S. economy $19.5 billion in 2008.  The study shows how 1.5 million medical errors compromise quality of American healthcare and cause unnecessary waste in the system

Commissioned by the Society of Actuaries (SOA) and completed by consultants with Milliman, Inc., the report used claims data to provide an actuarially sound measurement of costs for avoidable medical injuries. Of the approximately $80 billion in costs associated with medical injuries, around 25 percent were the result of avoidable medical errors.

Jim Toole, managing director of MBA Actuaries, Inc., said  "Of the $19.5 billion in total costs, approximately $17 billion was the result of providing inpatient, outpatient and prescription drug services to individuals who were affected by medical errors. While this cost is staggering, it also highlights the need to reduce errors and improve quality and efficiency in American healthcare."

Medical errors are a significant source of lost healthcare funds every year. For example, the study found that $1.1 billion was from lost productivity due to related short-term disability claims, and $1.4 billion was lost from increased death rates among individuals who experienced medical errors. According to a recent SOA survey, which identified ways to bend the national healthcare cost curve, 87 percent of actuaries believe that reducing medical errors is an effective way to control healthcare cost trends for the commercial population, and 88 percent believe this to be true for the Medicare population.

"We used a conservative methodology and still found 1.5 million measureable medical errors occurred in 2008," says Jonathan Shreve, FSA, MAAA, consulting actuary for Milliman and co-author of the report. "This number includes only the errors that we could identify through claims data, so the total economic impact of medical errors is in fact greater than what we have reported."

Key findings from the study include:

There were 6.3 million measureable medical injuries in the U.S. in 2008; of the 6.3 million injuries, the SOA and Milliman estimate that 1.5 million were associated with a medical error.
The average total cost per error was approximately $13,000.  
In an inpatient setting, seven percent of admissions are estimated to result in some type of medical injury. The measurable medical errors resulted in more than 2,500 avoidable deaths and more than 10 million excess days missed from work due to short-term disability.

The study also identifies the 10 medical errors that are most costly to the U.S. economy each year. Approximately 55 percent of the total error costs were the result of five common errors:

Pressure ulcers
Postoperative infections
Mechanical complications of devices, implants, or grafts
Postlaminectomy syndrome
Hemorrhages complicating a procedure

The SOA and Milliman findings were based upon an analysis of an extensive claims database. Measureable costs of medical errors included increased medical costs, costs related to increased mortality rates, and costs related to lost productivity of an error.

 


 

Medical Errors as "Never Events"

The National Quality Forum has studied and evaluated medical errors.  They have created a limited number of "never events" meaning, of course, that they should never happen.   See article here.   Most of these mistakes happen while a patient is being cared for in a nursing home.

Here are some that you often see in nursing home litigation: 
-Patient death or serious disability associated with the use or function of a device in patient care in which the device is used or functions other than as intended 
-Patient death or serious disability associated with patient disappearance for more than four hours 
-Patient death or serious disability associated with a medication error 
-Patient death or serious disability associated with hypoglycemia, the onset of which occurs while the patient is being cared for in a healthcare facility 
-Stage 3 or 4 pressure ulcers acquired after admission to a healthcare facility 
-Patient death or serious disability associated with a burn incurred from any source while being cared for in a healthcare facility
-Patient death associated with a fall while being cared for in a healthcare facility
-Patient death or serious disability associated with the use of restraints or bedrails while being cared for in a healthcare facility 
-Any instance of care ordered by or provided by someone impersonating a physician, nurse, pharmacist, or other licensed healthcare provider 
-Sexual assault on a patient within or on the grounds of a healthcare facility
-Death or significant injury of a patient or staff member resulting from a physical assault (i.e., battery) that occurs within or on the grounds of a healthcare facility

To learn more about this list, and the criteria for including a medical error on this list, visit the Center for Medicaid and Medicare Services website.

 

The Myth of Jackpot Justice

Bureau of Justice Statistics issued a Special Report on the number, type, and resolution of civil trials in the United States.  Some very interesting data is contained in the report.

Major findings from the 2005 Civil Justice Survey of State Courts include—
• A jury decided almost 70% of the approximately 26,950 general civil trials disposed of in 2005.
• About 60% of the general civil trials included in the survey involved a tort claim and about a third involved contractual issues.  Most of the tort cases involved motor vehicle accidents.
• Plaintiffs won in almost 60% of trials overall.
• The median damage award for plaintiffs who won monetary damages in general civil trials was $28,000.
• Punitive damages were awarded to only 5% of plaintiff winners in general civil trials in 2005.
• In the nation’s 75 most populous counties, the number of general civil cases disposed of by jury or bench trial declined by about 50% from 1992 to 2005.

Almost two-thirds (62%) of all plaintiff award winners were awarded $50,000 or less. A small percentage (about 4%) of all plaintiff award winners were awarded $1 million or more.

There were only 2,449 trials involving medical malpractice which amounts to 9.1%.  This is interesting since we know there are 100,000 deaths caused every year from medical malpractice.

Rick Scott for Governor?

Interesting article about candidate for governor Rick Scott, the former CEO of Columbia/HCA, who resigned in scandal in 1997 amidst government investigators' charges of a Medicare fraud scheme.  The company admitted to “systematically overcharging the government by claiming marketing costs as reimbursable, by striking illegal deals with home care agencies, and by filing false data about how hospital space was being used.”  The company’s facilities also increased Medicare billings by exaggerating the seriousness of the illnesses treated in its hospitals, and “granting doctors partnerships in company hospitals as a kickback for the doctors referring patients to HCA.”  Clearly he was also involved in Medicare fraud by inflating cost reports.

Scott in 1987, bought a couple of hospitals with the help of financier Richard Rainwater and, took over HCA and built the nation’s largest for-profit hospital chain. In 1997, Scott’s empire unraveled and he was forced to resign from the company. In 2001, he founded Solantic Corp., which operates a chain of urgent-care centers.  Columbia/HCA only had to pay back $1.74 billion in fines and Rick Scott walked away with severance pay of $10 million, a 5-year consulting contract, and stock then valued at $300 million.

Fast forward to March 2009. Scott founded Conservatives for Patients Rights with $5 million of his own money “to promote free market healthcare reform.” The group opposed any reform of the health care industry.  Scott’s campaign doesn't understand the new legislation and refers to it  as a “government takeover of healthcare.”  Except Medicaid and Medicare and Veteran Administration are government programs and the baby boomers are getting older.

 

Assisted Living Centers also doing well

Assisted Living Concepts Inc. (ALC), which operates a for profit chain of assisted living centers, reported significantly higher profit margins despite a drop in occupancy in its first quarter.  The company operates 211 assisted living centers in 20 states.  See full report here.  Revenue increased 1.4% to $57.9 million from $57.1 million.

The company reported net income of $3.6 million, or 31 cents a share, compared with a loss of $11.8 million, or 98 cents, a year ago. The year-ago quarter includes a non-cash write-off of $14.7 million in goodwill, an accounting entry that reflects the amount above book value paid for an acquisition. Excluding the write-off, the company earned $2.9 million in first quarter 2009.

An increase in private pay residents, who pay much higher rates than the Medicaid program, rate increase and lower labor and kitchen expenses contributed to the higher profits. It sounds like they stopped properly feeding the residents and provided less staff or less qualified employees.


 

Profits Soar in Nursing Home Industry

Many corporations provide insufficient staffing, training, and substandard care to pad their books and make outrageous profits.  Kindred Healthcare, Inc. recently announced its operating results for the first quarter ended March 31, 2010.

First Quarter Highlights:
Consolidated revenues rose 2% to $1.1 billion
⎯ Each operating division reported revenue growth compared to last year
• Reported diluted earnings per share totaled $0.38, including $0.06 of certain charges
⎯ Excluding the charges, first quarter earnings were at the high end of the Company’s guidance
range of $0.35 to $0.45 per diluted share
• Hospital volumes continued to improve
Reported admissions grew 3% from last year
⎯ Same-facility aggregate admissions grew 3%; same-facility commercial admissions grew 12%
⎯ Volume growth in the quarter was partially offset by softer Medicare and commercial pricing
• Nursing and rehabilitation center admissions grew 5% in the first quarter compared to last year
Reimbursement rates were generally in line with expectations
• Peoplefirst Rehabilitation continued to demonstrate consistent operating results
⎯ Division signed 28 net additional unaffiliated contracts compared to a loss of three contracts in the first quarter last year

See report here.   But the nursing home industry will insist they can't make any money because of alleged cuts in Medicaid and Medicare reimbursements, and, of course, on "frivolous" lawsuits.  Ridiculous.

I hope all of our loved ones are safe on this Mother's Day.
 

 

Another Great Article from Ken Connor

Ken Connor wrote a great article about the inherent injustice of tort reform on the Center for a Just Society.  Below is the full aricle:

On April 5, 2010, the community of Montcoal, West Virginia was devastated when an explosion at the Upper Big Branch mine took the lives of 29 men. For the families impacted by this disaster, coping with the unexpected loss of loved ones is only the beginning of what is sure to be a long and arduous quest for justice. Not only does the tragedy of Upper Big Branch demonstrate the inadequacy of regulations alone to protect vulnerable workers and their families, it highlights the vital importance of our nation's civil justice system as a means of compensating victims and punishing those whose reckless conduct harms others.

As news of the explosion at Upper Big Branch unfolded, it wasn't long before details of the mine's troubling history began to surface. According to the New York Times, "the mine had been cited for hundreds of violations over the last year, including many serious ones."

Why then, did the mine continue to operate? The early evidence suggests that the owner was gaming the system to protect its bottom line, putting profits ahead of the safety of its workers.

In order to avoid steep fines and delay the need for compliance, the Massey Energy Company fostered bureaucratic gridlock by contesting most of the Upper Big Branch mine's safety violations. While regulatory officials at the Mine Safety and Health Administration (MSHA) waded through stacks of appeal documents, hamstrung by weaknesses in the 1977 Mine Safety Act, the mine continued to operate unimpeded. What's more, the mining industry (as with many other regulated industries) has long had a revolving door between the regulators and the regulated. The ranks of the regulators are often filled with folks who come out of the mining industry. Likewise, the industry provides opportunities for advancement for regulators who decide to leave government service. This calls into question the zeal with which some regulators carry out their duties. Does a regulator really want to get tough on the company that might provide him with his next job?

Of course, regulatory regimes do nothing to compensate the victims or their families for the damages they suffer in such catastrophes. The fines that errant corporations pay for violating government regulations go to government, not the victims of those violations. But justice requires that there be a means to ensure that wrongdoers are made to compensate for the harm they inflict on those who suffer as a result of their wrongdoing, and this is where the much maligned civil justice system – better known as the tort system – comes in.

The term "tort" refers to a private or civil wrong. Derived from the medieval Latin word tortum ("wrong"), the root of the word goes back to the ancient Latin verb torquere, which means to twist (compare our modern use of the word "torque"). The tort system is designed to "straighten out" the injustices suffered by the innocent at the hands of wrongdoers by requiring compensation for the harms they have suffered.

But the reach of Big Business extends even to the judicial system, and there is a dangerous move afoot to immunize corporate malefactors from full accountability to their victims. Under the rubric of so-called tort reform, corporate brigands like Massey Energy use their clout in the political arena (derived from generous campaign contributions) to secure the passage of laws that artificially "cap" the amount of damages innocent victims can recover. Caps as low as $250,000 are routinely advocated for "non-economic" damages like pain, suffering, disability, and disfigurement, regardless of how much the victims have suffered. Tort reform means that bureaucrats and special interests far from the scene determine the amount of damages an injured party can recover, rather than a jury drawn from the community where the wrongdoing occurred.

Not content to limit the compensatory damages available to victims of corporate wrongdoing, business interests also seek to limit the recovery of punitive damages as well. Punitive damages are awardable in cases where a wrongdoer engages in intentional or reckless misconduct. Historically, such damages are levied as punishment, with the purpose of deterring similar misconduct by others. In taking into account the amounts to be awarded, juries are permitted to consider such things as the reprehensibility of the misconduct, the vulnerability of the victim, the profit resulting from the misconduct, the financial condition of the wrongdoer, and the extent to which the wrongdoer tried to conceal the wrongdoing. Juries may only punish – they are not permitted to bankrupt – the perpetrators of such misconduct.

But wrongdoers don't like to be held accountable, so business interests – through lobby groups like the U.S. Chamber of Commerce – have launched a full scale assault on the civil justice system, seeking to emasculate the rights of innocent victims and their ability to hold wrongdoers fully accountable. In addition to advocating caps on damages, they try to shorten statutes of limitations, secure immunity from liability, and place other legal hurdles in the path of the victims.

Sadly, this campaign has had great success. And without robust legal mechanisms in place to send a message that it's cheaper to do business the right way than it is to cut corners, businesses like Massey Energy will continue to do things the wrong way, and the innocent and unwitting will continue to suffer the consequences. If tort reform continues to be successful, it is inevitable that more and more communities across America will find themselves, much like the families of Montcoal, West Virginia, at the center of a senseless industrial tragedy.
 

OmniCare's profits soar

Despite paying a $98 million settlement for kickback schemes, Omnicare managed to pull in 4th qtr profits over $80 million. Omnicare is the nation's largest nursing home pharmacy.  See article here.   The financial results for its fourth quarter, reporting nearly tripled profits compared to the previous year after settling fraud allegations with the U.S. Justice Department as recently as last November.  See report here.

Omnicare paid a $98 million settlement in 2009 to end a Justice Department investigation that  the company engaged in kickback schemes with two Atlanta nursing homes involving pharmacy service contracts.

I guess fraud, kickbacks, and paying lobbyists is profitable.

 

Georgia Caps Ruled Unconstitutional

The Atlanta Journal Constitution reported the unanimous Georgia Supreme Court decision striking down arbitrary caps on jury awards in medical malpractice cases, part of the state's 2005 tort reform law.  The state high court determined that a $350,000 cap on noneconomic damages, which includes compensation for a plaintiff's pain and suffering, violates the right to a jury trial as guaranteed under the Georgia Constitution.

The 2005 law's cap on damage awards "clearly nullifies the jury's findings of fact regarding damages and thereby undermines the jury's basic function," Chief Justice Carol Hunstein wrote for the court. She added, "The very existence of the caps, in any amount, is violative of the right to trial by jury."

The ruling upheld a $1.265 million jury award to Betty Nestlehutt after an operation in 2006 resulted in Nestlehutt's face covered with gaping wounds that required prolonged, excruciating treatments to keep them from becoming infected. The wounds left her permanently disfigured.

About two dozen states have enacted caps on damage awards in medical malpractice cases. Last month, the Illinois Supreme Court declared unconstitutional a $500,000 cap against doctors and a $1 million cap against hospitals. Georgia's tort reform law limited awards to $350,000 against doctors and capped total awards at $1.05 million in cases involving multiple health-care providers and medical facilities.

 

Is this Justice?

The Ohio Supreme Court has enacted a monumental change that impacts doctors and patients, shifting malpractice judgments from doctors’ insurers to the taxpayers.  More info at WCPO.  The decision limits recovery, ignores the right to a jury trial, and promotes injustice and inadequate compensation. The ruling means your private doctor can make a serious medical mistake - take off the wrong leg, operate on the wrong side of your brain - and you can never sue him in a jury trial.   No other state has ruled the same way. 

The Theobald ruling was named after Keith Theobald. Theobald was a healthy, fit husband and father of two young children, when an elderly driver clipped his pickup truck as he was driving to work 11 years ago. The impact flipped the truck across all lanes of the highway into a field, crashing in a stand of trees. Rescue workers found Theobald hanging upside down in a tree. He was paralyzed from his chest down.

Theobald and his wife, Jacqueline, took the news in stride. “I remember pre-operatively we said, ‘You can still do basketball with Jake (his then 5-year-old son) and watch TV and share things with the kids. We’ll get a van and we’ll adapt it.’” Keith Theobald agreed. He felt he could still work and live a full life. “I could do about anything. The wheelchair doesn’t hold you back.”

Theobald could see and use his arms after the accident. He was alert and ready the next day when doctors at University Hospital suggested surgery might improve his back injury.

Instead, he woke up in a different world. Not only was he still paralyzed, but now he also was blind and had lost the use of his armsMedical records prove a series of mistakes during surgery led to oxygen deprivation and injuries worse than the accident had caused.

Trapped in darkness and unable to move on his own, Theobald will need round-the-clock care the rest of his life. He sued the doctors who did the surgery, only to get this devastating shock: The doctors weren't liable. They had immunity from all malpractice claims because they had students in the room with them.

In the Theobald case, the Ohio Supreme Court ruled that doctors who sign with a state university like the University of Cincinnati to let medical students learn from them, even if that just mean one student walking in the room for a second, now are considered state employees. As such, they get immunity if anything goes wrong on the job, even in their private practices.

Jacqueline Theobald says, “The state didn’t come in and take care of Keith. The university didn’t come take care of him. This doctor took care of him. We’re suing the doctor.”

But the Ohio Supreme Court said they couldn’t sue the doctor because some students were allegedly in the operating room, the doctors were teaching per their State of Ohio U.C contracts. Therefore those doctors were not liable for any mistakes. Instead, the Supreme Court ruled that the Theobalds belonged in the Court of Claims, a separate court set up in 1980 to handle suits against the state, usually against public state employees like highway workers, never before used to protect private doctors in their private practices.

The Court of Claims has no juries. Single judges, hired by the state, issue rulings for or against the state. The top award is $250,000, no matter the severity of the damages. Most importantly, the taxpayers foot the bill, not doctors’ malpractice insurers who must pay when suits are filed in county courts of common pleas.

Of course, Keith Theobald never knew to ask if a student would be watching his operation, and if so what the impact might be. But if you think doctors from now on will have to tell patients and get consent to have students in the room, you’d be wrong. The Supreme Court ruled the law doesn’t demand disclosure. No one has to inform patients they could lose their rights to sue the doctors without ever knowing it.

Keith Theobald hasn’t lost hope for a medical miracle. But in the end, he never did get a chance at even the Court of Claims the Ohio Supreme Court said he should access. That’s because the same state attorneys for U.C. who argued that’s the court where the Theobalds belonged, now argued it was too late. The statute of limitations had passed. No recovery, not even $250,000, for Keith Theobald’s lifetime injuries.

 

Poliakoff & Associates, P.A., is one of South Carolina’s most respected and distinguished law firms. The Poliakoff firm began nearly 60 years ago by three attorney brothers: Matthew, J. Manning, and Bernard. With a history of believing the justice system...More...