If there is a single megatrend, it’s that more states are shifting the focus of discussion away from malpractice or malpractice insurance to patient safety.  ((They ARE??  Seems to me that they should be addressed during the SAME discussion...))

Until recently, patient safety had been considered a separate issue, according to Kala Ladenheim of the National Conference of State Legislatures. She considers the convergence a good sign.

But there is great variation in the way states have tackled patient safety and medical malpractice issues.

The malpractice dispute has pitted doctors and insurers against lawyers and consumers and has produced tough political fights in several states.

More than half of the states, including California, Virginia and Texas, put caps on damages awarded for pain and suffering, while others, like Pennsylvania and Florida, have taken steps to stiffen the discipline of doctors who negligently injure their patients.

In Washington, voters’ rejection of Initiatives 330 and 336 last year shoved the caps and punitive “three strikes” ideas off the table, and Gov. Chris Gregoire’s recent negotiations ignored both options in favor of a collection of relatively modest steps that deal with protections for doctors who make apologies to patients for errors.

Gregoire’s brokered deal also calls for mandatory mediation, voluntary arbitration, insurance regulation, reporting of adverse medical events, immunity for medical personnel who make good faith reports of others’ misconduct, and clearer writing on drug prescriptions.

But many other ideas remain possibilities, even though Gregoire and interest groups did not appear to look at them seriously when they hashed out the compromise package made public last week. Here are a few ideas that appear to have gained traction in other states or that have not fully been considered in Washington:

Patient safety centers

A growing number of states are creating patient safety centers, with programs up and running in New York, Pennsylvania, Florida, Maryland, Massachusetts and, recently, in Oregon. More recently, Missouri created a center, and less formal collaborations by hospitals are under way in Illinois and Washington.

The formal safety centers collect data on hospital errors — everything from mistakes that don’t harm patients to mistakes that cause lasting damage or deaths. The information is analyzed to learn whether there are errors that can be avoided. Advisories then are posted on a Web site alerting other providers to ways of avoiding problems.

New York’s program is alone in making data available to the public on a hospital by hospital basis. Others report the data in an aggregate form that conceals the origin and shields medical personnel from concerns that might result from public distribution of the information.

Pennsylvania’s program requires data on all adverse events as well as what hospitals call “near miss” events that constitute errors but do not lead to injuries to patients.

Only about 5 percent of the incidents that Pennsylvania has recorded — or 70,851 reports out of 1.5 million overall in 2004 — were considered serious or had adverse effects on patients.

But the extra data in Pennsylvania is considered important. It is analyzed by the patient safety centers, and recommendations are sent to participating hospitals.

The Pennsylvania Patient Safety Authority, for instance, posts advisories available to the whole world — including one posting that led to state legislative proposals for standardizing the use of color coded wrist bracelets given to patients, because messages conveyed by the wrist bands differed from hospital to hospital, leading to confusion.

Triggering the advisory was a nurse’s belief that a patient’s yellow band meant the patient should not be resuscitated, when in fact it meant to warn against giving the person blood products.

In another case, Pennsylvania officials think an insulin syringe advisory led immediately to corrective action in another hospital that was able to avoid a serious problem.

If the patient safety centers have anything in common, it’s their roots. They all were born of the 1999 Institute of Medicine report that estimated the number of preventable hospital deaths in the United States could be as high as 98,000 a year.

Some safety centers, such as Oregon’s, are quasi-governmental and supported by fees paid by the industry; participation is voluntary. Pennsylvania requires participation.

In Washington, no such ­patient-safety center exists yet, and no legislative proposal is in the works. However, Washington’s legislature is considering a less formal approach, requiring hospitals, birth centers and state prison hospitals to report 20 or more “adverse events” such as deaths or botched treatments to the Department of Health for analysis.

Unlike in Pennsylvania, incidents not causing actual harm would be reported only voluntarily, but the list of reportable events would mirror a National Quality Forum list to be consistent with other states.

The Washington State Hospital Association’s executive director says it would not oppose creation of a quality center. In the meantime, the hospital association has joined the national 100,000 Lives campaign that arose out of the Institute of Medicine report, winning participation from all of the state’s hospitals in its quest to collect data on preventable medical errors and its analyses on how to avoid them.

“We just wanted to move forward. It wasn’t that we had anything against what they were doing in those other states. But we just couldn’t wait any longer,” said Leo Greenawalt, executive director of the Washington hospital association, who told The Olympian’s forum on medical malpractice last month that he wanted to move beyond medical malpractice and its focus on blame, instead focusing on ways of avoiding errors in the future. The goal: Create a “culture of safety.”

Greenawalt has frequently drawn comparisons to the Federal Aviation Administration’s finding that it was able to eliminate crashes by focusing on reports of incidents — without fear of blame — then taking steps to avoid those incidents in the future.

Greenawalt said the Institute of Medicine report has become like a bible, leading to the Institute for Healthcare Improvement’s 100,000 Lives campaign and a national movement to reduce preventable errors in much the same way. “What they understand is they can’t regulate better behavior in the hospitals. They have got to find a way to restructure relationships between doctors and nurses” and other personnel, he said. “They know it’s going to take a while.”

One leader at Swedish Hospital in Seattle reports that steps to prevent ventilator pneumonia already have been successful, with no cases one year after having 18 cases and 14 deaths the previous year, Greenawalt said. Statewide, “we think we can save in the range of 1,000 to 2,000 lives,” he added.

The patient safety programs haven’t been in existence long enough to produce definitive results. Jim Dameron, director of Oregon’s pilot program, with five hospitals participating initially, described it last summer as “an experiment. We’ll see if this will work. ... We are a scrappy agency just getting started.”

No other state has produced clear, convincing results either, according to Jill Rosenthal, who co-authored a 2004 report on six states’ patient safety centers for the National Academy for State Health Policy (NASHP) in Portland, Maine.

“It’s definitely something states are looking at. It’s still preliminary. It’s hard to point to specific results,” Rosenthal said recently in a telephone interview.

“I’d say, give it time,” said William Sage, a doctor-lawyer and Columbia Law School professor who served as principal investigator for The Project on Medical Liability in Pennsylvania, an exhaustive two-year project funded by the nonpartisan Pew Charitable Trusts.

“I’m satisfied by the fact that people are treating them as sincere reforms rather than just political cover. ... I’m pleased that patient safety is clearly a part of the malpractice discussion.”

State-run insurance

Pennsylvania is among almost a dozen states that have taken steps toward setting up their own insurance programs to supplement the private market.

Oregon, by contrast, subsidizes premiums for high-risk specialty doctors in a bid to get more care into rural areas of the state. But the state doesn’t run its own program.

In Pennsylvania’s case, the program is known as M-CARE, which has been in existence since 1975 but was retooled during that state’s major malpractice reform effort in 2002.

The program has had mixed results, providing liability protection to health care providers in a band of coverage between $500,000 and $1 million. It requires them to get private insurance coverage for lower or higher amounts.

But lately the program is costly for physicians and has received subsidies of more than $200 million a year — $1 billion cumulatively, by one count. Officials hope to end it by 2009 but the private market has not resuscitated enough, according to the state’s insurance commissioner. 

Pennsylvania Gov. Ed Rendell has talked about dedicating tobacco taxes to help retire a multibillion-dollar liability that has built up in the fund; that liability has led to high doctor premiums and is a discouragement to new physicians coming into the system, according to one of several studies done by The Project on Medical Liability.

Pennsylvania’s medical society spokesman Chuck Moran complains that the state’s medical liability insurance premiums are at an all-time high and that one community recently lost its only physician because of cost pressures.

But independent data cited by Sage of the Pew-funded project show no actual flight of doctors out of state — but instead a tendency for young residents to move out of state for their first practices.  ((Ten years ago, PA retained 50% of the residents it trained....today, it's less than 8%.  So who's going to replace the physicians who retire or drop dead?  PA used to be average - 12-14% - for physicians under the age of 35.  Today, only 3.4% of PA physicians are under the age of 35 - more than half of the doctors in the state are 50 or older....))  

By contrast, Oregon has a cheaper, $5-million-a-year program that helps pay 40 percent of the medical malpractice insurance premiums for rural doctors — those who qualify by having a certain percentage of their practices in communities smaller than 15,000 people that are at least 10 miles from a community that large. Family practice doctors who deliver babies get 60 percent of premiums paid, and obstetricians get 80 percent rebates.

It’s a program that both the state’s trial lawyers and doctors like, and the Oregon Medical Association wants to expand it to include specialists such as neurosurgeons. Just two years after its debut, it has 1,105 physicians participating — 54 of them obstetricians and 71 of them family practitioners who also deliver babies.

“I don’t think there is any question it is working,” said Jim Kronenberg, chief operating officer for the Oregon Medical Association, who thinks it has kept obstetricians in practice in small communities. “It certainly doesn’t solve the problem in the long term, but it does provide some relief and some incentives for physicians in small communities to stay there.”

The subsidy comes out of money paid into an accident insurance fund. Kronenberg said the OMA plans to “do everything we can” to keep the program going beyond its 2008 sunset date.

More important, the OMA wants to expand the program to include neurosurgeons and obstetricians in urban areas, too. But Kronenberg said the question is whether the state can afford it.

The Oregon program could have application in areas of Washington, which Kronenberg described as sharing a similar rural makeup as Oregon and a similarly poor reimbursement system in its Medicaid and Medicare programs. A survey of Kittitas County in Eastern Washington by a University of Washington medical student found pressures growing on those who deliver babies, but fell short of calling the situation a crisis yet.

However, Dr. Tom Norris, vice dean for academic affairs at the UW Medical School, said the study indicates that medical malpractice insurance costs are clearly a problem for specialists in such areas, and he described those doctors as being like the spotted owl — an indicator species showing the trouble ahead for others. The double-whammy, he said, is the low reimbursements in rural areas, which often have older and sicker populations, compared with urban areas.

In some areas of the state, Norris said, hospitals are putting doctors directly on staff to help with malpractice insurance costs. But there are other ways to deal with the problem, he said, including higher payments or reimbursements to doctors practicing in those areas.

The Washington Department of Health is already looking into a system of providing higher payments to doctors that take on uninsured patients or those on Medicaid and Medicare.

Washington Insurance Commissioner Mike Kreidler proposed a state-run re-insurance program that would have offered an extra layer of protection for larger claims, but the $10 million cost for setting it up doomed the idea a couple of years ago.

Kreidler said recently that “it’s still a very good approach but it requires funding to make it work. Getting that money out of the general fund right now is pretty hard to do.’’

No-fault payouts

Since the late 1980s, Virginia and Florida both have operated programs that distribute aid to families of children born with severe birth injuries regardless of whether a doctor’s negligence was involved.

The programs work well in getting aid to families in a hurry, according to the directors of both agencies. But the programs do have a down side: Families sometimes think more compensation is merited, and doctors who participate and pay premiums to support the programs don’t necessarily pay less than doctors who buy insurance in the private markets.

However, a legislative audit in Virginia found that the program has contributed to a lowering of malpractice insurance rates for obstetricians in that state — an effect enhanced by that state’s caps on noneconomic damages as well as a hard cap on total damages in a tort case.  ((Duh.....))

George Deebo, executive director of Virginia’s program, said 110 children had been admitted to the program, and costs for each are expected to run $2 million on average. Although the state audit offered many criticisms that dealt with financial aspects of the program, Deebo said most families have been pleased and the audit found the cases were dealt with better than if they had been in the court system.

“Anecdotally, there are certainly some families that would rather not be in the program. They wanted to sue the doctors,” Deebo said. “But I believe the vast majority of the families in the program believe it provides for most of the needs of the children.”

At Florida’s Neurological Injury Compensation Association, executive director Kenny Shipley also reported successes. “I think that it has dampened the effect of (insurance premium) increases, especially for obstetricians,” she said. “OB’s were paying the highest rates and leaving the system; they still pay high rates but less than neurosurgeons — about half.”

Critics or skeptics say the programs are expensive, because doctors must pay into the funds to participate and costs are very high — much higher in some cases than initially was expected or comparable to the private market.

The idea hasn’t seriously been advanced in Washington. Rep. Pat Lantz, D-Gig Harbor, tried to raise the suggestion a year ago but promptly was shot down by critics, in part because the idea requires a “schedule of damages” or worker compensation model for deciding what costs or damages to award in a case.

And a task force completed a study in October that recommends a look at how to create a “schedule of damages” or recommendations to juries that decide non-economic damages in jury trials. But that concept also appears stalled.

Even so, Lauren Moughon of the AARP recommended at The Olympian’s forum on medical malpractice issues that Washington, at a minimum, do a study to learn how feasible a limited program might be.

And Lantz said later she was considering whether to introduce legislation to push the birth-injury program idea forward.

The state’s trial lawyers could be expected to oppose such a move.

Already in Washington the state Supreme Court has ruled that caps on damages are unconstitutional.

Medical courts

No one has a medical court up and running in the United States, but the activist group Common Good is working hard to promote this alternative to the civil justice system. In a nutshell, expert judges would sit in judgment of medical liability cases, relying on expert but neutral witnesses of their own choosing to help them decide.

Advocates say it would bring speed, reliable science, expertise and ultimately a more consistent form of justice to medical verdicts.

Mary-Lou Misrahy, chief executive of Physicians Insurance, the Seattle-based malpractice insurer, cited medical courts during The Olympian’s forum as one of several possible solutions to consider.

She noted that most victims of malpractice never get their cases into court under the fee-driven system that prevails today.

But a 2003 study for The Project on Medical Liability in Pennsylvania concluded the courts or special medical screening panels were “unpromising” and could lead to politicizing of the courts.

And the American Bar Association came out recently against special medical courts. ((Well, gee, no bias there....))

Brad Shannon is political editor for The Olympian. He can be reached at 360-753-1688 or bshannon@theolympian.com.

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