Radical Surgery Is Urged for Medical Malpractice

After 39-year-old Jim Wojcieszak died of a heart attack that hospital doctors had failed to recognize, his family wanted an explanation. They would have liked an apology too.

Just getting the facts required a long, emotionally painful journey through the world of medical malpractice litigation, and years passed before anyone said they were sorry.

Even though the Wojcieszaks won a financial settlement and could be considered winners in the malpractice system, they have joined a growing number of healthcare organizations, patient advocacy groups and others who think the time has come for fundamental change.

They want a system that encourages willing disclosure when medical mistakes are made and insists on corrective action. And for those who have been harmed, an apology and appropriate compensation. They also want to eliminate some of the emotional pain and rancor that are part of the present system.

The Wojcieszaks and others are convinced a window of opportunity has opened for ending decades of stalemate while helping doctors and hospitals learn from their mistakes and avoid repeating them.

The opportunity arises, advocates say, because President Bush’s decision to put malpractice reform near the top of his domestic agenda has focused public attention on the problem. The fact that Congress is deadlocked over Bush’s specific proposal -- caps on jury awards -- has opened the door for consideration of alternatives.

Although public debate has been dominated by the struggle between trial lawyers and plaintiff groups on the one hand, and the healthcare and insurance industries on the other, alternatives exist.

Some are quietly undergoing field tests around the country.

“There is so much noise around the heated debate over caps that people are not looking beyond their noses to the broader picture,” said Dr. Dennis O’Leary, president of the Joint Commission on Accreditation of Healthcare Organizations, a standards-setting body.

With the push for caps getting nowhere, O’Leary said “there is a willingness to see how ... other ideas might work around the country. I see a period of experimentation.”

One approach that is being tried in several places uses a system of arbitration in which medical care providers acknowledge errors up front, then express regret and try to work out settlements with victims and families. A more far-reaching alternative would replace the present system with special courts in which judges with medical expertise would hear cases and determine awards based on uniform payment guidelines.

Such an approach has the potential to speed up the process, advocates say, to bring greater equity to a system that is subject to the varying judgments of individual juries, and to filter out some of the anger that often drives plaintiffs.

Most important of all, such strategies could make it easier to detect and combat medical errors.

Under the present system, doctors and hospitals are reluctant to admit mistakes because such admissions could be used against them in court. And the Bush proposal, which seeks to hold down malpractice insurance rates by setting dollar limits on jury awards for pain and suffering, does not address this issue.

“Caps are a sort of Band-Aid approach,” said David Studdert, a professor of law and public health at Harvard. “They do absolutely nothing about the problem of medical errors and making healthcare safer.

“There are a lot of preventable deaths, and the malpractice system ought to be contributing something to reducing errors,” Studdert said.

More than almost anything else, that is what bothered Jim Wojcieszak’s brother Douglas about his experience with the malpractice system.

Jim Wojcieszak was a burly investments salesman who volunteered installing home heating systems for Habitat for Humanity. He lifted weights and he smoked. He had gone to the emergency room of a Cincinnati hospital one night in May 1998 suffering from severe stomach pain and body aches.

Doctors suspected he had a virus and sent him home. Three days later he was dying.

A heart surgeon who made a last-ditch effort to keep him alive told Wojcieszak’s father, “I could have saved your son” -- if other doctors had not missed the telltale signs of heart attack.

The case soon turned into the type of lawsuit that doctors blame for the rising cost of medical malpractice insurance. Although the Wojcieszaks obtained a settlement in 2000, the amount of which was confidential, there was no guarantee the same medical mistakes would not be repeated with another patient.

“That’s something my parents struggle with to this day,” Douglas Wojcieszak said. “We got a settlement, but at the end of the day, we don’t know if they changed their processes and system to keep this from happening again.”

Because of this, Douglas Wojcieszak, a former Republican political operative in Illinois, is lobbying for legislation in his home state that would encourage hospitals to disclose medical mistakes, offer an apology and fair compensation, and follow up with corrective action.

Similar alternatives have been around for more than a decade and have been tried by some Veterans Administration hospitals and other facilities, with promising results.

Douglas Wojcieszak is not the only one who has become an advocate of new approaches after having personal experience with the present system. Sue Sheridan has been through malpractice litigation twice, first on behalf of her son and then her husband.

Her son Cal developed kernicterus, a preventable type of brain damage resulting from jaundice that is not treated soon enough after birth. Now 10, Cal cannot walk without help. His speech is impaired and his arms and legs sometimes move uncontrollably.

While Cal’s case was pending, his father, Patrick, developed a tumor on his spine. Doctors removed it, but there was a communications breakdown. No one told the Sheridans the tumor was malignant. Patrick died of cancer in 2002, leaving a family with two unresolved malpractice cases.

Sheridan obtained settlements in both lawsuits, but became an outspoken critic of the malpractice litigation system. She was a founder of the Consumers Advancing Patient Safety, based in Chicago, which advocates a range of measures to reduce medical errors.

“I believed and trusted in the tort system, and when I got to see what it was really all about, I was shocked,” said Sheridan, who lives in Boise, Idaho.

A jury initially found the doctor and hospital in her son’s case were not at fault. But the judge, in a written ruling, termed the testimony of key defense experts “inconsistent,” “unintelligible” and “of no consequence.” He then took the highly unusual step of overturning the jury verdict and ordering a new trial.

“I agree that frivolous lawsuits need to be curbed,” said Sheridan, who has a master’s degree in business administration and was an international banker before she became an advocate for patients.

But she thinks Bush’s proposed caps would not solve the real problems.

Research indicates that caps can help tame the rate of increase in malpractice premiums, but that they also disproportionately affect people who have suffered the most serious injuries. One study of California’s $250,000 cap found that people who suffered grave injury had their compensation reduced by an average of seven times as much as people who suffered minor injury.

California’s $250,000 cap, the model for Bush’s national proposal, was enacted in the early 1970s. If the California cap had been adjusted for inflation it would now be about $900,000.

Sheridan’s experience led her to become interested in special medical courts as an alternative to the tort system. The judges would have the help of an agreed-upon list of mistakes that should not happen in a high-quality medical practice or hospital, and of a compensation schedule that would take into account such factors as the severity of a person’s injury.

Creating a court system is such a big step that it may not come soon. Although there are specialized tax and patent courts that could serve as models, finding judges with the requisite medical background and setting up processes for handling cases could take several years.

A more manageable experiment is under way at the University of Michigan Health System in Ann Arbor. “Rather than be defensive, we essentially embraced patient complaints,” said Richard Boothman, an assistant general counsel who handles malpractice.

Boothman said the philosophy had three parts: to identify and settle “quickly and fairly” cases in which a patient was hurt through medical error; to defend aggressively cases that the hospital considered to be without merit; and to study all incidents to see how staff procedures could be improved.

Such “early offer” programs can satisfy a family’s desire for an explanation and an apology, but, critics say, they could also create pressures to reach a settlement.

When it adopted the changes in 2002, the Michigan system had 275 to 300 open malpractice cases at any given time. That number has been cut by more than half, Boothman said.

The average time it takes to close a case has gone from more than three years to less than one. And legal costs have been cut in half.

Payouts have not declined, partly because some cases that predated the new policy have been settled since the changes took effect. But Boothman said insurance experts were recalculating the system’s long-term malpractice exposure because of what they saw as positive trends.

“The key question doctors have to ask themselves is not how they can make plaintiffs’ lawyers go away,” Boothman said. “They have to ask themselves a more difficult question: ‘Why would my patient go see a lawyer in the first place?’ ”

Nearly seven years after Douglas Wojcieszak’s brother died, the legislation he is trying to steer through the Illinois Legislature would set up a pilot program similar to the one at the Michigan hospital. The bill is known as “SorryWorks.” To entice hospitals to try it, the state would promise to pick up the difference if malpractice costs rise.

“Lawsuits are necessary, given the way things are done now,” Wojcieszak said. “But it’s a horrible process. My parents had to relive what happened every day for a year and half. My folks thought they would have a heart attack.”