President Signs Law Creating National Database on Medical Errors, Critics Believe Under-Reporting Will Continue

Reporting of errors has always been a serious problem within the medical community. In an effort to reduce medical errors and improve safety, President Bush signed into law bill S 544 creating a national patient safety database.

The intent of the legislation is to encourage health care providers to report errors to safety organizations which can analyze trends and create proposals to help prevent similar mistakes from occurring in the future.

The data which will be available will not identify specific patients, health care providers, or individuals who report problems and it cannot be used against providers as evidence in malpractice suits, other litigation, or by accrediting bodies or regulators.

The President stated that “by providing doctors with information about what treatments work and what treatments cause problems, we will reduce medical errors that injure and cause the deaths of thousands of Americans each year."

Reaction to the legislation, which passed the Senate on July 21 and the House on July 27, was mixed. For example, J. Edward Hill, president of the American Medical Association, said the law is "the catalyst we need to transform the current culture of blame and punishment into one of open communication and prevention."

Dr. Hill added, "Future errors can be avoided as we learn from past mistakes. This law strikes the proper balance between confidentiality and the need to ensure responsibility throughout the health care system.”

Critics, however, argued that the law should have included federal penalties for medical errors and that it does not guarantee that providers will report mistakes.

Margaret Van Amringe, vice president for public policy and government relations for the Joint Commission on Accreditation of Healthcare Organizations (JCAHO), said "There’s no incentive to report useful information if you know it is going to be used against you. If you don’t have the information then you are not going to solve the problem."

To further address these concerns JCAHO said it might be one of the groups responsible creating a subsidiary "patient safety organization."

Reporting of errors has always been a serious problem within the medical community. There are several reasons for this including: (1) exposure to civil liability; (2) exposure to governmental sanctions and penalties; (3) licensing problems associated with most documented errors; (4) loss of revenue and/or reputation especially with respect to hospitals or other medical facilities.
In January of 2003, the National Practitioner Data Bank (NPDB) reported that just 5% of U.S. doctors are responsible for 54% of all malpractice. Yet even after a doctor has been found liable for malpractice, there is no guarantee that he or she will be penalized in any way with respect to practicing medicine.

In fact, only a small percentage of the worst doctors have their licenses suspended and even fewer have their licenses revoked. The rest are either shifted around (similar to the way in which priests who were known to have abused children were simply transferred to other parishes) or move to another community in the same or another state.

In any event, such “problem” doctors have no difficulty in continuing to practice medicine. Doctors have even been known to move to other countries in order to continue practicing medicine when their ability to do so in the United States has been compromised as a result of extremely serious infractions.

It is well known in the medical profession itself that doctors are not always inclined to report their errors, or those of their colleagues, for a number of reasons. These include: (a) the desire to escape punishment; (b) the unwillingness to admit their negligence; (c) the belief that protecting a colleague will somehow ensure the same degree of loyalty from that person when and if the tables are turned; (d) fear of retribution from one or more superiors; (e) a reluctance to bring one’s hospital into disrepute; and (f) sheer arrogance.

This routine lack of accountability for medical errors is the main reason why they remain so prevalent and continue to be a threat throughout this country and the world.

In 2001, the JCAHO announced certain standards for medical practice in hospitals in the United States including working actively to prevent medical errors, designing patient safety systems, and encouraging and acting on internal reports of errors. Creating a standard and actually having doctors follow it are two entirely different matters, however.

In the last decade, 84% of Health Maintenance Organizations (HMOs) and 60% of hospitals failed to report medical errors to the government, allowing many health care professionals to literally get away with murder. Many experts see this disregard of reporting requirements as being as close to having a “license to kill” as you can come without being James Bond.

Consider the recent case of Charles Cullen, a registered nurse who may have killed as many as 40 patients at 10 hospitals in New Jersey and Pennsylvania over the course of 16 years.

Although Mr. Cullen was investigated on a number of occasions with respect to misusing potentially lethal drugs and was fired or allowed to resign from a number of hospitals, he was permitted to “hopscotch” from hospital to hospital without the slightest difficulty.

The penalty for failing to report errors may include the removal of legal protections from the government, yet this penalty is rarely imposed. While information on incompetent doctors is supposed to be listed in the NPDB, oftentimes reportable incidents fail to make it any further than the hospital they occurred at.

The doctors involved are simply given a slap on the wrist and then permitted to return to their duties. A new debate has arisen as to whether the information on the NPDB should be available to the public. Of course doctors are strongly opposed to such an idea, claiming that once a malpractice claim is filed, their record will be tainted even if that claim is unsuccessful.

In New York, for example, the Department of Health (DOH) has been criticized for failing to revoke medical licenses in appropriate situations. One cause of this, however, may be the fact that New York City hospitals have been repeatedly cited as being the worst in the state for reporting medical errors, even those resulting in death, to the DOH.

In 2001, the state Commissioner of Health, Dr. Antonia C. Novello, stated: “People are not unemployable just because they have made a mistake, but when you break the trust of the public good, I don’t think you should be able to practice.” Yet doctors who have made mistake after mistake are still practicing and still making preventable medical errors. In fact, more than 75% of doctors who were disciplined in the past 8 years began working again after they were punished by the state.

What is missing here is a clear and concise plan explaining how hospitals should handle problematic doctors and preventable medical errors. Also missing is a uniform system which provides information on previously disciplined medical professionals so that subsequent employers are aware of their past record.
Such a system would have saved many patients from being killed by Charles Cullen in New Jersey and Pennsylvania between 1987 and 2003.

As is often the case, money is also part of the problem. Simply stated, no medical facility wants to get rid of a good earner and, as luck would have it, doctors with disciplinary problems are often among the top third of moneymakers at their given hospitals.

Doctors who are consistent and plentiful income producers are often praised for their ability to provide a constant patient stream to the hospital while actually avoiding punishment for any questionable practices resulting in preventable medical errors.

In this regard, consider the chilling situation that occurred at Redding Medical Center in California. One particular cardiologist was single-handedly responsible for making his small, rural hospital one of the most lucrative business enterprises for its owner, Tenet Healthcare.

Unfortunately, the doctor was only able to do this by intentionally making false diagnoses of heart-related problems in order to justify performing hundreds, if not thousands, of unnecessary procedures and surgeries.

 While other staff members were suspicious of the goings on at the hospital, their concerns were dismissed by their superiors until the scheme was exposed by one patient, a 55-year-old reverend, who sought a second opinion after he was told he needed emergency triple bypass surgery.

A highly qualified cardiologist was shocked by the diagnosis and told the patient that his heart was in perfect shape. Federal agents raided the hospital and Tenet was eventually forced to pay $54 million in penalties for the unnecessary heart procedures.

This, however, does not change the fact that this single doctor was a staple at the Redding Medical Center for almost two decades and was being protected by his superiors who were only concerned with the enormous annual revenue he produced and not the quality or legitimacy of his practice.

Thus, it remains to be seen if a reporting system without any real teeth will be able to take a significant bite out of the problem of medical errors.

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