The common approach of American hospitals to errors is to deny and to defend—not an environment conducive to learning or continuous improvement. Bruce Lambert and Timothy McDonald write at Talking Points Memo:
When patients are harmed by medical care, the traditional response of health systems is to “deny and defend.”
Hospitals deny they are responsible for the harm, and when pressed, they defend their providers’ conduct throughout a protracted and arduous legal process. According to a recent issue of the Journal of the American Medical Association, hospital administrators say that this approach minimizes their liability.
Sometimes, when errors are egregious or there is intense media scrutiny, as in the case of the misdiagnosis and death of Texas Ebola patient Thomas Eric Duncan, hospitals eventually apologize and make financial settlements. But without media attention, routine harm resulting from errors still typically receives the “deny and defend” response.
Such behavior has failed to make the U.S. health care system safer or more humane for patients and families. The good news is better alternatives may now be available.
This past week’s announcement of President Barack Obama seeking $6.2 billion for Ebola-related funds from Congress — including $2.4 million for the U.S. Department of Health and Human Services — demonstrates that many feel the Ebola crisis will likely continue to stress the US healthcare system. In doing so, the situation will reveal many of its flaws and weaknesses.
Every day in every hospital in America, health professionals make mistakes that harm patients. The frequently cited estimate from the Institute of Medicine’s 1999 report on medical error was that 98,000 Americans die each year from medical errors. A 2013 estimate from the Journal of Patient Safety put the number of deaths due to preventable harm at 400,000, with perhaps 10-20 times more people being seriously but not fatally harmed.
From the perspective of patients and families, the typical hospital response prevents access to the truth. It also denies them a chance to tell their stories, denies them an apology when they deserve one, and denies them an opportunity to reach rapid and equitable out of court settlements.
Such an approach is anathema to learning and improving. It promotes secrecy about the individual and systemic causes of medical errors and substandard care, makes it impossible to identify and learn from patterns of error, and leaves us defenseless against present and looming health threats.
A 2010 study in the New England Journal of Medicine showed that . . .
And contracts that that require binding arbitration (with the arbitrators selected and paid by the company—so guess how they rule) extend this “deny and defend” policy to nursing homes. Nicole Flatow writes in ThinkProgress:
Evan Press’ father was in a Fayetteville, Arkansas, nursing home for three months when he died. Press said he had a bed sore the size of his fist, and that an attendant says he was so dehydrated that he appeared not to have been given any liquid or food for four or five days, according to a report from local news station KARK.
The nursing home may dispute these allegations. But Press will never be able to hash it out in court, because his contract contained a boilerplate clause. The advent of contractual terms known as “arbitration clauses” seem particularly dry and obscure on their face. They’re about procedure, and contract law. But what they mean is that people like Press can’t hold companies accountable. Nursing homes are one of a number of industries in which arbitration clauses have become a standard for those pages-long contracts that customers and employees believe they have no choice but to sign. What they do is bind customers to take their case to a private arbitrator, rather than to court.
The arbitration hearing is private, so the nursing home won’t necessarily receive public reprisal for its actions. The arbitrator is not a government service, and has to be paid by somebody. Usually, it’s paid for by the company to handle its entire roster of cases, which could be one of several explanations for why arbitrators overwhelmingly side with these companies. Even when arbitrators do side with individuals, they are likely to get a much lower judgment than they would in court. And arbitration doesn’t come with any of the procedural protections that exist in court, including the right to appeal. So whatever they come up with is binding.
Clauses like this give companies such as a nursing home significantly less incentive to quash bad behavior. The same sort of disincentives apply to cell phone contracts, cable contracts, and others that you sign with large companies just to be their consumer. They also frequently apply to employees, who are denied judicial recourse for workplace abuse.
Couch went public with his case, because he wants others to know what the real-world effect is when individuals are unknowingly signing these contracts, even in cases where you are trusting a business with a relative’s live. “People just need to know when they’re signing that initial paperwork if something happens it’s going to arbitration. That’s the way the facilities want it, that’s not how it should be,” he told KARK.
Unfortunately for Press, the U.S. Supreme Court has been one of the greatest friends to these clauses. California tried to make its own state law saying some arbitration clauses are unconscionable and should not be enforced. The Roberts Court struck it down. Even small businesses tried to challenge an an arbitration clause that prevented them from challenging the alleged monopolistic practices of American Express. The Roberts Courtstruck that, too, over a dissent by Justice Elena Kagan that called the ruling a “betrayal of our precedents, and of federal statutes.”
A Consumer Financial Protection Bureau study found that arbitration clauses are even worse than they seemed. Because even though companies claim going to arbitration is easier and faster than filing a lawsuit, almost nobody goes to arbitration.
Congress could have reformed arbitration clauses with a bill known as the Arbitration Fairness Act. But that bill is even less likely to go anywhere in a Republican-controlled Congress.
There’s one other avenue for reform. . .
Your credit card agreement, your telecom agreement—all dote on mandatory binding arbitration as the only allowable avenue. And company-paid arbitrators are standing by, ready to rule against you (regardless of the merits or facts of the case).