Recent Remedies for Health Care Ills

• Jurisdiction: United States,Federal
• Publication year: 2010
• Citation: Vol. 21 No. 4

Georgia State University Law Review

Volume 21, , ,

Article 1

Issue 4 Summer 2005

6-1-2005

Recent Remedies for Health Care Ills

Ansley Boyd Barton

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Recommended Citation

Barton, Ansley Boyd (2004) "Recent Remedies for Health Care Ills," Georgia State University Law Review: Vol. 21: Iss. 4, Article 1. Available at: http://digitalarchive.gsu.edu/gsulr/vol21/iss4/1

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RECENT REMEDIES FOR HEALTH CARE ILLS Ansley Boyd Barton*

Introduction

It is the prevailing wisdom that health care in the United States is in crisis, a diagnosis that has found its way into policy statements in legislation.¹ Links between escalating costs to the consumer and escalating insurance costs to hospitals and health care providers have been widely recognized for some time. Researchers have increasingly explored connecting these problems to medical error since the release of the groundbreaking report To Err Is Human from the Institute of Medicine (IOM) in November 1999.³ Referring to an "epidemic," the report estimated that, besides the cost in human lives and suffering, medical errors had cost U.S. hospitals between $17 billion and $29 billion per year.⁴ The report concluded that the majority of medical errors do not result from "individual recklessness or the actions of a particular group," but rather, from "faulty systems, processes, and conditions that lead people to make mistakes or fail to prevent them."⁵ Addressing the "epidemic" of medical errors, the IOM recommended that states institute mandatory reporting of adverse medical events resulting in death or serious harm and encouraged health care organizations and professionals to engage in voluntary reporting of errors that indicate systemic flaws.⁶ Early responses to the report also suggested that a collaborative, interdisciplinary approach and less punitive atmosphere around error

* Professor of Conflict Management and Director of the Master of Science in Conflict Management at Kennesaw State University. The author would like to thank Sara Barton O'Dea for her invaluable suggestions and comments on an earlier draft of this article.

1. See, e.g., 35 Pa. cons. Stat. Ann. § 449.2 (West 2003) (concluding that the escalation of health care costs constitutes a major crisis).

2. Id.

3. Inst, of Med., To Err Is Human: Building a Safer Health System (L.T. Kohn et al. eds., 2000), available at http://www.nap.edu^ooks/0309068371/html/.

4. Inst, of Med_m to Err Is Human: Building a Safer Health System (Nov. 1999), available at http://www.iom.edU/Object.File/Master/4/l 17/0.pdf (summarizing the report in a report brief)-

5. Id. at 2.

6. Id. at 3.

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reporting were necessary to stem the tide of medical errors.⁷ These responses repeatedly emphasized the role of communication in the reduction of error.⁸

In November 2004, the fifth anniversary of the release of To Err Is Human, the Institute for Healthcare Improvement convened a "Stat Call" teleconference to discuss innovations made in the years since the groundbreaking report.⁹ Although the participants, including three of the writers and researchers of the original report, found that the "conversation" about patient safety had changed to the extent that work in the area of patient safety had acquired legitimacy, the discussion conveyed a sense of frustration that more progress had not been made.¹⁰

Focusing on legislative developments, this Article will explore the connection between the perceived crisis in health care and the emerging interest in patient safety, including the reporting of errors, the power of apology, and the increasing recognition of the role collaboration and communication play.

I. Recent Developments in Patient Safety

Well before the publication of the IOM report, the Veterans Health Administration, the largest integrated health care system in the United States, aggressively promoted patient safety through reporting of error, root cause analysis, and problem solving.¹¹ The Veteran's

7. see, e.g., the council on graduate med. educ. & the nat'l advisory council on Nurse Educ. and Practice, Collaborative Education to Ensure Patient Safety: Report to the Secretary of U.S. Department of Health and Human Services and Congress (Dec. 20, 2000), available at http://wwwxogme.gov/jointmtg.pdf.

8. See, e.g., Fla. Stat. Ann. § 1004.08, 1005.07 (West 2004) (requiring that public and private schools offering degrees in medicine, nursing, or allied health provide patient safety instruction and include material on effective communication and teamwork in their curricula).

9. Stat Call Teleconference: To Err Is Human: Five Years Later held by the Institute for Healthcare Improvement (Nov. 17, 2004) (transcript on file with Georgia State University Law Review) [hereinafter Stat Call Teleconference], available at http*y/www.ihi.org/NR/rdonlyres/842DFE9D-2B72-4D21-91DE-00644AD25530/0/Transcript_l 11204J 12204.pdf.

10. Id. at 4 (comments by Lucian Leape).

11. See Creating a Culture of Safety, VA National Center for Patient Safety, at http://www.patientsafety.gov/vision.htnil (last updated Jan. 7,2005).

Administration (VA) National Center for Patient Safety, which spearheads this work, noted in its mission statement:

Only by viewing the health care continuum as a system can truly meaningful improvements be made. A systems approach that emphasizes prevention, not punishment is the best method to accomplish this goal. Other high-risk industries/companies such as airlines and nuclear power have used this approach to accomplish safety.¹²

While the VA assumed a leadership role in its early focus on patient safety, others have followed its lead.¹³ According to the VA, Australia and Japan have adopted its safety-training model, and Canada, Japan, Sweden, and the United Kingdom plan to use it.¹⁴ The American Hospital Association also developed a "tool kit" based on the VA model in 2003 to help hospitals identify areas of care that might cause patients harm.¹⁵

In contrast, five years after the publication of To Err is Human, Congress has yet to take action on legislation that would set national patient safety standards. The House and Senate recently passed bills that would have created The Patient Safety and Quality Improvement Act of 2004.¹⁶ Both bills provided for confidential, voluntary reporting systems.¹⁷ The bills' provisions would require health care providers to report information on errors to Patient Safety Organizations, which would analyze the data and make recommendations. The bills would not change existing remedies available to patients, would not create a mandatory punitive reporting system, and would not affect the confidentiality of patient health

12. Id.

13. John Morrissey, Patient Safety Proves Elusive, modern healthcare, Nov. 1, 2004.

14. Id.

15. Id.

16. Editorial, Congress Must Finish Work on Patient Safety, AM. med. news, Sept. 13, 2004, available at ht^7/www.ama-assn.org/araednews/2004/09/13/edsa0913.htm.

17. Id.

18. Id.

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information.¹⁹ The American Medical Association praised the bills as "strikjmg] the proper balance between confidentiality and the need for accountability" and noted that the bills had the "overwhelming support" of the health care community. Although the Senate passed its version of the bill on July 23, 2004 and incorporated the House version, Congress could not reconcile the bills before it adjourned in 2004. Congress must reintroduce the bills if the effort to establish national patient safety standards is to stay alive.

Although Congress failed to pass the Patient Safety and Quality Improvement Act in 2004, state legislatures have attempted to advance patient safety issues. As discussed below, these efforts include legislation creating patient safety centers and legislation requiring reporting of medical error.²³

A. Patient Safety Centers

Although many states have passed legislation to address patient safety, several states have developed either independent or quasi-independent patient safety centers to coordinate collection of data, recommend best practices, and promote training on patient safety.²⁴ An early response to the perceived crisis in medical error was the establishment of The Betsy Lehman Center for Patient Safety and Medical Error Reduction within the Massachusetts Executive Office of Health and Human Services in 2001.²⁵ The Center serves to develop and disseminate training programs and information on best practices for patient safety and reduction of medical errors.²⁶

New York similarly created an early patient safety center through the Patient Health Information and Quality Improvement Act of

19. Id.

20. Id.

21. 150 cong. rec. S8627 (daily ed. July 22,2004).

22. See infra Part LA.

23. See infra Parts LA, LB.

24. See, e.g., Mass. Gen. Laws Ann. ch. 6A, § 16E (West 2001); N.Y. Pub. Health Law § 2998 (McKinney2002).

25. Mass. Gen. Laws Ann. ch. 6A, § 16E (West 2001).

26. Id. § 16E(a).

2000.²⁷ As stated in the Act, the legislature intended the patient safety center to "maximize patient safety, reduce medical errors, and improve the quality of health care by improving systems of data reporting, collection, analysis and dissemination, and to improve public access to health care information not otherwise restricted."

Florida, Maine, Maryland, Oregon, and Pennsylvania also have safety concerns.²⁹ Since 2003, Florida has required that every licensed facility adopt a patient safety plan, appoint a patient safety officer, and establish a patient safety committee. In 2004, the legislature created the Florida Patient...