“Patient safety should not be political, but it is – wildly political.”

Medical Staffing Consultant and Malpractice litigator Anne Robers is back for a fascinating look at the long-term consequences of tort reforms and the ineffectiveness of self-reporting through the National Practitioner Data Bank (NPDB).

Texas enacted comprehensive reforms of Tort law in 2003, making it harder for medical malpractice cases to move forward. The reforms placed strict limits on damages that juries could award, rendering the pursuit of complex cases economically impossible. The reforms effectively “closed the courthouse doors for the vast majority of patients in Texas who are the victims of a preventable medical error”. Today, only 1% of medical malpractice cases make it to a Texas court.

Kay recalls the intensity of the public relations effort for Tort Reform, which claimed there was a “lawsuit crisis” driving up the costs of health care because unscrupulous plaintiff lawyers filed “frivolous lawsuits” and juries gave away “ridiculous awards” to litigants. Kay refutes those claims by offering a simple lesson in the economics of malpractice litigation. A lawyer might pay out hundreds of thousands of their own dollars over several years to properly develop a case. Frivolous lawsuits are simply bad business. Nevertheless, tort reform legislation tends to protect the business end of the health care system rather than expanding patients’ rights.

Anne notes the Healthcare Quality Improvement Act of 1986, which governs the NPDB, hasn’t been updated in over forty years. Consider the state of the automotive industry had it not evolved over the last four decades. Kay and Anne outline their frustrations with the NPDB. They list several ways and the reasons lawyers for hospitals and insurance companies are moved to skirt the laws or ignore them altogether. Although the law includes penalties and fines for failing to report, they have “never been enforced,” and “not one single hospital has ever been punished for breaking the law by not reporting a dangerous physician”.

Even after widespread media scrutiny in the wake of the Christopher Duntsch case the continued problems with patient safety, combined with a continuing tendency of lawmakers to protect businesses rather than people, clearly show, that systemic changes are desperately needed to make healthcare safer for patients.

The conversation continues in the next episode, but it takes a far darker tone as it turns to discuss even more extreme cases of dangerous doctors and the cracks in the systems meant to stop them.