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Gena Bigler: Malpractice rarely means doctors pay; medical review boards lessen that rate

(Photo from St. Pius X College)

(Photo from St. Pius X College)

Accidents happen; it’s a fact of life. Some can be prevented.
We as a society do what we can to put a stop to accidents whenever possible. We outlaw texting while driving; we make drinking and driving illegal; and we set standards and write policy. We fund protection agencies to watch over certain industries to maintain those safety policies. Somehow in this safety frenzy, we have managed to overlook the third largest killer of Americans: Preventable medical errors.
A study in the Journal of Patient Safety estimates 440,000 people die each year from preventable medical errors. For perspective, the entire population of Lexington is 300,000. At that rate, in less than 10 years, the entire population of the state of Kentucky would be dead.
Largely, doctors are left to police themselves and they aren’t doing a very good job of it. A study by the National Practitioner Data Bank found that only 5.1 percent of doctors are responsible for over half of all malpractice payouts. Also, the study found that of 35,000 doctors who had two or more malpractice payouts, only 7.6 percent were disciplined. Even more shocking is that of doctors with five malpractice payouts, only 13 percent have been disciplined.
A victim of a medical error, or their family, if the patient didn’t survive the error, has little recourse to right the wrong they suffered. They can file a complaint with the medical board, which will be reviewed by the doctor’s peers and, as shown, probably not result in any disciplinary action. Civil litigation is the only other option and the only possibility for restitution.
If a family is left without a breadwinner because of a preventable medical error, the family expenses don’t just stop. The medical bills don’t just go away. There are valid reasons people are willing to go through the already long and painful legal process where they have only a 20 percent chance of a favorable outcome.
A Harvard study discovered that only one of every eight preventable medical errors resulted in litigation. Instead of the alleged overabundance of frivolous claims, studies show that the majority of victims do not file lawsuits.
Regrettably, our state representatives are currently considering legislation that would make it more difficult to pursue legal action in response to medical errors. The legislation, SB 119, proposes establishing medical review boards that victims and their families would have to go through before accessing the courts. Such medical review boards could become barriers to justice. The stated purpose of the boards is to weed out “frivolous” lawsuits, though no data has been provided on the estimated number of unmerited cases before the courts.
Weighing the documented number of deaths per year from preventable medical errors (over 200,000 documented and 440,000 estimated) against an unknown and undocumented number of unmerited lawsuits, medical review panels are an unnecessary obstacle to the courts for families that have already suffered tragedy.
My five-year-old understands that even if it is an accident, if she hurts someone, they deserve an apology. It is the kind and just thing to do.
Apologizing when you have caused harm is basic courtesy. A few doctors and hospitals are discovering it is also good policy, but not nearly enough. For many, the standard response to a medical mistake is to say nothing, and communicate only through lawyers.
There are many stories of families hiring an attorney just in order to learn what happened to their loved one. A Harvard study found that a lawsuit was the only way for many victims to discover the facts of what happened. What patients need are medical review boards who police doctors and take a hard look at preventable medical errors and then dole out discipline where it is needed.


Gena Bigler is passionate about public service and credits her time serving nonprofits in AmeriCorps and Volunteers in Service to America (V.I.S.T.A.) with teaching her extreme budgeting and bargain shopping. Gena is now CFO of McNay Settlement Group and serves on the board of the Lactation Improvement Network of Kentucky (L.I.N.K.). Gena would be happy to hear from you at lgbigler@gmail.com.


Click here to read more columns from Gena Bigler.
You might also be interested in another take on SB 119: Commentary: Concerns with SB 119 and the creation of medical review panels in Kentucky.

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