In its February, 2012, session, the Oregon Legislature grappled with proposed health care transformation bill. In the course of the session, we learned that some legislators are more concerned about “defensive medicine” and establishing arbitrary limits on access to justice for Oregonians who are on the Oregon Health Plan (OHP) or Medicaid than they are about keeping patients safe.
Did you know that more than 98,000 Americans die every year from medical errors that result in wrongful death? 
That number is equivalent to a 747 jet liner crashing every day of the year, killing all on board. So, when we talk about healthcare transformation, shouldn’t we really be talking about patient safety?
We need to focus on the real problem with health care delivery – keeping patients safe and informed. Recently, Legacy Emanuel participated in a national study where they implemented simple procedures and checklists for all hospital staff to follow. This included things like washing hands between each patient, making certain all medical equipment is accounted for before finishing a surgery, and double checking that each patient matches the chart at the end of the bed in his or her hospital room. According to the Oregonian’s report on that study, Legacy saved over $13 million in one year, cut down on medical errors, and significantly lowered their infection and injury rates. Imagine the cost savings if these checklists and procedures were implemented in every Oregon health facility. Imagine the health improvement and lives saved from real healthcare transformation that starts with patient safety.
Instead of focusing on patient safety, we have legislators holding forth about something they call “defensive medicine.” They are using that label as a tool to put arbitrary monetary limits on patients’ rights. Here is a modest proposal: If we’re going to talk about things like this, let’s resolve to get the facts straight.
“Defensive medicine” refers to tests ordered by a provider for purposes of preventing or defending against a lawsuit. A provider who orders testing with no therapeutic value commits insurance fraud, violates Oregon law, and ignores the first rule of medical ethics to do no harm. The doctor who orders unnecessary tests puts the patient at risk by subjecting the patient to an unnecessary medical procedure. And legislators think that Oregon doctors routinely order unnecessary tests – committing Medicare or insurance fraud and putting patients at risk – for what reason? To keep insurance premiums lower? Really?
In the same opinion piece there was a second solution to “the problem.” There is a reason for the quotes: No one has ever identified the problem. Even for lack of a problem, some Oregon legislators seek to impose a two-tier justice system. Under this plan, the two-tier system would mean two levels of justice. The first tier is reserved for individuals with private insurance. The second tier is for patients on the Oregon Health Plan.
The new law, which was signed by Governor Kitzhaber in March, strips OHP patients of a basic constitutional right to trial by jury and instead and would limit or cap how much OHP patients can sue for when they are injured due to negligent, substandard medical care. That’s right; under the solution to the non-problem OHP patients’ claims would be limited even when a provider gives care that is proven to be negligent.
The legislators who pushed this agenda presumably did it in the name of lower doctor malpractice premiums. What they are not saying is that this solution to non-problem has been tried in other states. The result: No noticeable effect on doctor liability insurance premiums.
Under this plan, if you have the good fortune to have your own insurance, you would be able to hold a negligent care provider accountable for substandard or negligent care. If a surgeon mistakenly amputates the wrong leg and you are on OHP, the two-tier system of justice would limit your access to justice, no matter how egregious the negligence, how high your lifetime medical costs, or your life situation. And, this limit would take the form of a fixed limitation set by the Oregon Legislature. Presumably, some lawmakers believe that the Oregon Legislature is better able to set damages in all medical malpractice cases than a jury that carefully evaluates the true cost of the personal injury suffered by the patient and decides each case based on the evidence.
It’s time that the political agenda of the few take a back seat to patient safety. It’s time to make certain that healthcare transformation puts patient safety first.