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Read Making a Killing

home / healthcare / in the media

Knoxville News-Sentinel
Mar 02, 2003

by Richard Powelson

Transplant case stirs malpractice questions

Bill Frist, the only physician in the U.S. Senate, is hoping that his years of work to reform medical malpractice liability is not crushed by the death of 17-year-old botched transplant victim Jesica Santillan.

Frist said her death should not affect the proposal's chances of passage, but the public outcry over her death suggests there will be a long national debate on the issue before a majority agrees to certain liability limits.

Santillan died from complications in two transplant operations after she initially received a heart and lungs of the wrong blood type.

She was so young and had her medical care paid by a charitable fund, so lawyers note her family would be entitled to very little in economic damages.

The bill pushed by Frist and other leading Republicans would limit noneconomic damages (pain and suffering, loss of companionship) to $250,000.

If you figure her family's lawyer and the expert witnesses would be paid about half that total, that would put a $125,000 value on the life of a 17-year-old who potentially could have lived a long fruitful life with the right organs.

Most people could earn $125,000 in six years or less. To pass liability reform, Congress likely will have to allow certain exceptions from a $250,000 cap on noneconomic damages to allow higher damages for particularly outrageous cases or very young victims.

There is no doubt that liability and insurance reform is vital to avert a national health care delivery crisis.

Big insurance premium increases are eating deeply into physicians' incomes, prompting a growing number to quit practicing, go on strike or scream.

In January, surgeons at four hospitals in West Virginia went on strike. In Nevada, so many surgeons left a trauma center that it had to close.

The American Medical Association says 12 states have a full-blown crisis in health care. In Pennsylvania, for example, about 17 percent of the state's key specialists have retired early, left the state, stopped doing high-risk procedures and changed to part-time work to reduce insurance rates, the AMA said.

The association cites California as a model where liability limits have worked. That state for 25 years has had a limit of $250,000 on noneconomic damages.

The Foundation for Taxpayer and Consumer Rights, which has worked with malpractice victims in California, has said the California law treats patients fairly if they have high economic damages.

But in cases with low economic damages, such as those involving a child, teenager or senior citizen, injured patients or their families have trouble finding an attorney willing to take their case with the $250,000 limit on noneconomic damages, the group said.

Attorneys in liability cases often get paid only if they win and often get one-third of the award.

Frist is aware that medical errors happen too often and play a big role in higher malpractice insurance costs. He is trying to pass a voluntary, confidential reporting system to better track the volume and reasons for physicians' and hospitals' errors that harm patients.

But lawyers and their friends in Congress generally oppose the confidential component.

The Institute of Medicine estimated the number of deaths in 1999 from preventable medical errors was 44,000 to 98,000. Of course, many more are permanently injured.

Santillan's death was another huge warning to physicians and hospitals that they must do a much better, more careful job of ensuring that the safest, most effective steps are taken with each patient if they expect to remain in business.
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Richard Powelson, the News-Sentinel's bureau chief in Washington, D.C., may be contacted at 202-408-2727 or PowelsonR@shns.com

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