Medical errors should not be prosecuted as crimes: Systemic change is needed

As reported recently in MedPage Today, Kentucky has become the first state to pass a law shielding medical professionals from criminal prosecution for clinical errors. This is important. It is a good thing and had the support of many professional organizations. It is not about protecting nurses and doctors who actually commit crimes, as ‘it does not apply to "gross negligence or wanton, willful, malicious, or intentional misconduct."’ For example, the Pennsylvania nurse convicted of murdering patients with insulin would not be covered by this law. But mistakes happen, and while they can have very bad outcomes in the medical setting – including death – when they are not intentional they should not be prosecuted as criminal acts.

The case cited as motivating this law occurred in the neighboring state of Tennessee, and involved a nurse named RaDonda Vaught at Vanderbilt Medical Center. She mistakenly gave a paralytic rather than a sedative with a similar name to a 75 year old woman, causing her death. She did not try to cover it up but reported it immediately, and yet was charged with and convicted of reckless homicide and impaired adult abuse. The outcome, the woman’s death, was terrible, but the criminal charges were neither justified nor functional. Yes, you can bet that the particular nurse would be extra careful the next time she gives medication – although, of course, with the criminal conviction she has lost her nursing license. Maybe it could be a deterrent to other nurses and doctors making inadvertent mistakes? Think about how well this works in other areas, about, for example, how a pedestrian or bicyclist being killed by a car in your town has suddenly made all the other drivers extra careful. Right.

Doctors, nurses, and other health professionals are already careful (barring the rare truly malicious exception, who is not covered by this law). The issue is how to make it increasingly difficult to make mistakes, to make errors. A whole field of health safety and error prevention exists, originally stimulated by the work of W. Edwards Deming and Avedis Donabedian, and including such luminaries as the Institute for Healthcare Improvement (IHI) and founders Donald Berwick and Paul Batalden, and Harvard professor Gordon Schiff.  One thing that is clear is that the solution is not draconian punishment of those who have made mistakes. It is mostly (almost all) about systems, about making it difficult (and some day, hopefully impossible) to commit errors. Deming said “To find the mistake is not enough. It is necessary to find the cause behind the mistake, and to build a system that minimizes future mistakes”. Every mistake is a gem, because it offers us the opportunity to discover the cause and to develop systems to prevent that, and similar, mistakes in the future.

Many systems have been developed in many places and areas of healthcare to do this. For example, in pharmacy drug lists, similar sounding or spelled drugs are often distinguished by having the letters that are different capitalized, calling attention to it and making it less likely to prescribe the wrong one. Surgery now almost never takes place without a final “timeout” in which a checklist is gone through with all the operating team present, including “which side are we operating on”! There are many more examples. In the field of occupational health, the first choice in preventing injuries is architectural, e.g., don’t put a big window next to a place on the shop floor where slippery substances are spilled. The second choice is engineering: ok, the window is there, so let’s put up bars across it so if people do slip they don’t go through. The last choice is behavioral: tell the people who work there to be careful! If this last sounds unlikely to be completely successful, it is both the most common and the least effective. Imagine your being responsible for changing the behavior, consistently and always, of a person. Now make that everyone! Think back to drivers…

It is true that many, maybe most, healthcare facilities are and have been working to improve quality and limit the number of possible places that workers can make mistakes, but these procedures are processes and must continually be upgraded and enhanced, primarily by identifying mistakes that continue to be made and figuring out how they can be prevented. Quality improvement is not something that can be “put in place”; it is both a state of mind of individuals and most importantly an overarching commitment on the part of the institution, in all places. Yes, it costs money – but so do the lawsuits that come when it is inadequate, and that should not be the motivation.

Although making money is a strong motivation. Insurance companies, for example, are very good at instituting procedures that make them money. ProPublica recently published an article about Dr. Debby Day, who was one of the physician reviewers at CIGNA, tasked with reviewing the decisions about approving or denying coverage for people’s care, after the initial decision was made by a nurse reviewer (mostly working in the Philippines). CIGNA continually monitored the number of minutes taken for each review, and physicians like Dr. Day were sanctioned or even fired if they took too long. They took too long making decisions that could not only affect people’s health, but their life and death. Your life and death. Your family’s. How were they supposed to keep up with the speedup expectations? ‘“Deny, deny, deny. That’s how you hit your numbers,” said Day, “If you take a breath or think about any of these cases, you’re going to fall behind.”’ This makes CIGNA (and, to be fair ALL the big health insurance companies) money. The speedup is part of it, but the denials are where the real money is made. Denying ‘coverage for a cancer patient or a sick baby’. Your cancer. Your baby.

To be sure, insurance companies as such are not the actual providers of health care, like hospitals and doctors. Except, increasingly through vertical integration, they are – UnitedHealth, for example, owns Optum (and OptumRx, a pharmacy benefits manager). The thing is that they are corporations and are very good at putting systems in place to increase their bottom-line profits, even when that harms the health of – or kills – people who are their clients. So, I think, they should and can be equally effective in putting in place systems that protect and benefit those clients/customers/patients/people.

Hopefully, the type of law passed in Kentucky will become more widespread. This will make it more difficult for the prosecutors and politicians who want to make their “tough on crime” reps by such prosecutions, which is good. But also, hopefully, it will be combined with renewed efforts to strengthen the systems of quality control, and greatly limit the possibility of an individual making a mistake.

The health of people should be the goal of healthcare organizations.

It's all corporate now. Why do we stand for it?

"Sick. Help. That’s it!”

“John Q,” played by Denzel Washington, whose son needs a heart transplant which the insurance company has denied coverage for

 

There are still people in health care – admittedly mostly administrators and pundits and some doctors, highly-paid folks who think of themselves as “leaders” rather than “bosses” – who see the restrictions that the health insurance system places on people accessing health care as a good thing. They say that it keeps the lid on health care costs by limiting the use of “expensive and unnecessary” services by people who want “too much” of it. Luckily, for me, I no longer run into those with such views very often, and I like to think that there are fewer of them now.

These are often the same folks who supported, and continue to support, “managed care”, generally thought of as HMOs and PPOs, and their senior partner, Medicare Advantage plans (which are essentially HMOs or PPOs paid for with Medicare dollars). The techniques developed for restricting care in these plans have now been adopted by the health insurance industry overall. “Prior authorization”, which often means “delayed or denied authorization” has become one of the key strategies for restricting your access to health care services.

Restricting your access to health care is presumably not the specific intention of these practices. It would be mostly incorrect to portray health insurance executives as mean, grasping devils rubbing their hands together, like Mr. Burns, the boss in “The Simpsons”, in pleasure at your pain. They are actually mean, grasping devils rubbing their hands together in pleasure at the amount of money that they are making; your pain is incidental. I don’t know how many look like Mr. Burns.

HMOs, or what we now call HMOs, were not always money-grubbing deniers of care. Most of the early ones were consumer cooperatives (with the notable exception of Kaiser-Permanente, developed by Henry Kaiser for employees of his steel company, so he and not the insurance companies would make more money) like Group Health in Seattle, HIP in New York, and Ross-Loos in LA, designed to cut out the insurance companies so that members could get the same care for less money, or more care for the same money.  Without the profit motive in play, truly unnecessary care (sometimes that had been ordered by physicians or hospitals who stood to make money on it) could be avoided, and more necessary care provided. They often contracted with physician practice groups that were owned by the physicians themselves, rather than a corporation that violated the laws against corporate practice of medicine. Kind of vaguely socialist. Kind of good for people. Kind of quaint.

If you’re old enough, you may remember this kind of thing. In the 1980s the Reagan administration sought to expand them (naming them HMOs) as a method of cutting the cost of health care. Or, at least, cutting the costs that were expended in delivering actual health care. The plan involved encouraging insurance companies to buy up and establish their own HMOs, so it wasn’t too long before the reality of a consumer cooperative HMO was, in most places, history. Owned mostly by insurance companies, and increasingly with vertical integration, those dollars formerly “wasted” on providing “unnecessary” health care could now be turned into executive compensation and corporate profit. Some people may think this is a bad trade-off, that making money for corporations instead of providing health care for people is truly waste, but those holding such anachronistic and naïve ideas are wrong. At least in the opinion of those controlling the corporations! And their policy apologists.

This innovation was such a success (at making money) that it was expanded to a much wider base of health insurance. The old kind of insurance (often managed by the non-profit Blue Cross/Blue Shield, before they became the for-profit Anthem), that covered people for their health care needs, did not try to beat them down with denials, paid a reasonable amount to providers, and took a reasonable fee for their work, gradually became a thing of the past. These were sneered at as “Cadillac plans” (only when the beneficiaries were union members, of course not when they were executives!)  losing hold with each successive series of union contract negotiations. The executives kept their solid gold Cadillacs while union members and other employees were pushed lower and lower down until their coverage became a shadow of what it formerly was, and they often found themselves denied the care they needed and used to get.

There is a little historical irony here, in that the labor movement sowed the seeds of its own destruction by making health insurance a contract benefit. After World War II, unions in other countries fought to make health care available to all people; in Britain the party that was elected to govern actually had “Labour” in its name and introduced the National Health Service. In the US, the government instituted wage and price controls, so, unable to bargain for higher wages, unions bargained for health insurance as a way to recruit members. It was good for the members, but not so good for the nonunionized workforce. And the bosses liked it too; employer contributions to health insurance are not taxed, whereas wages are. Anyone who thinks that that such things as employer-sponsored health insurance is a “generous benefit” that is not paid for by the employee through lower wages is wrong. So, while the poor and non-unionized ended up on their own, the US labor movement got its members health insurance, often excellent health insurance. For about 30 years.

Now it’s all owned by corporations, the whole shebang. Insurance, providers groups, pharmacies, nursing homes. Many of these corporations are insurance companies, like the biggest, UnitedHealth, which also owns doctor group Optum and pharmaceutical benefit (PBM) manager OptumRx. And I am sure that, while many practices went under because they weren’t paid as a result of a major cyberattack on United subsidiary Change Healthcare, United itself is doing fine, making $8.5B in the first quarter (after all, by not paying those practices, they got to keep their money in the bank paying interest)! Other corporations are owned by private equity funds, which don’t even pretend to have any interest whatever other than maximizing their profit. Indeed, these are arguably even worse since they are sometimes happy to destroy the companies (and thus the services they provide) if that makes them the most.

The idea that a significant part of the cost of health care is overuse of services by patients would be pretty funny if it were not so serious, and for the fact that any such overuse is dwarfed by the number of people not getting adequate care, paying too much (in premiums and deductibles and co-payments and lost wages) for care, or being unable to access care altogether. That is the big problem, and as always it is the lowest income (and disproportionately minority) people who are hurt worst.

And even if you do believe that overuse is a problem, there is no conceivable way that any half-sentient, half-decent human being could possibly believe that money going to corporate and private equity profits is not waste and is a better use than providing health care to people. It is amazing that there any who do, but they include a lot of folks being paid by them – including members of Congress.

So: tell your Congressperson that YOU don’t think so, and that money appropriated for health care for people should be use for that, not raked off by insurance companies and other corporations, and it is their job to make that happen!

Pregnancy, contraception, and misinformation on social media

A recent article in the Washington Post, “Women are getting off birth control amid misinformation explosion” (March 21, 2024), by Lauren Weber and Sabrina Malhi, discusses a recent explosion of misinformation about contraception on the Internet. More important, it notes the more serious result – women getting pregnant when they didn’t want to be because they believed this misinformation and acted on it by not using effective contraception. In many cases, according to anecdotal reports, women have sought abortions but found themselves living in states that made this difficult or impossible.

The article is not paywalled but does require (free) registration to read, so I will include some of the other important points in it.        

•  Much of the misinformation is especially found on sites like TikTok and Instagram that are followed by young people.
• Many of these sites and posts are by people with no medical training or credentials, but who cite their personal experiences, and such ideas as “natural” (whatever that is or isn’t).
• Many of the latter are folks trying (or succeeding) in developing careers as social media “influencers"; in addition to the usual ways of making money (advertising or payment from companies for promoting their products) they also can actually sell their services (one “charges hundreds of dollars for a three-month virtual program that includes analyses of blood panels for what she calls hormonal imbalances.”).
• An OB/Gyn physician in DC says that many of the women he sees “have traveled from states that have completely or partly banned abortions, he said, including Texas, Idaho, Georgia, North Carolina and South Carolina.”
• A variety of experts have cited the particular vulnerability of “Women of color whose communities have historically been exploited by the medical establishment may be particularly vulnerable to misinformation, given the long history of mistrust around birth control in this country… [including] forced sterilizations of tens of thousands of primarily Black, Latina and Indigenous women happened under U.S. government programs in the 20th century”.
• Much of the misinformation is propagated by those with political, social, and religious agendas.

This is a lot of things. Some of them need to be addressed on an individual basis by doctors and other health professionals when beginning women on contraceptive treatment. Especially important is identifying, which requires asking about, any concerns women may have, what the source of that concern is, and honestly discussing potential side effects. The discussion should address what those side effects do, and do not, indicate, ways of treating them, and effective alternatives if they get too serious. The most important point about both hormonal (oral contraceptive pills, implants, and some IUDs) and long-acting reversible contraception (LARC, mainly IUDs and implants) is that they effectively prevent pregnancy and are generally are what women who are having sex and do not wish to become pregnant should use. But if there is not (or is insufficient) discussion about worries that women have about the other effects of contraception, and as a result they are not used, or not used appropriately (e.g., oral contraceptives must be taken daily), unplanned and undesired pregnancy may be the result.

It is true that there is a horrific history of medical experimentation (and exploitation) of Black people in the US. The most famous is the Tuskegee Study, which followed a group of Black men with syphilis to study its “natural history” for years after treatment was available – but not given to them. Black women were victims of forced sterilizations, long after slavery, carried out by leading American physicians such as J. Marion Sims, whose statue in New York City was recently taken down (photo in this excellent review in The Intercept) and continued until relatively recently. A New York Times article from 2022 focuses on two sisters who were only in their early 60s at the  time, and were sterilized in 1973 at 14 and 12. It is unsurprising that, given this history, that Black and other minority women may legitimately be suspicious of treatments that affect their reproductive capacity.

It is also important to remember that all pregnancies, even when desired, carry health risks greater than that from any contraception. A recent piece in The Hill reports that nearly 40% of Black women of reproductive age are very concerned about the risks to their health should they become pregnant, especially with the repeal of Roe v. Wade and the restrictions on or abolition of abortion in many states. There is a great disparity in maternal mortality. As the Hill article notes

Studies show Black people who give birth are three to four times more likely to die from pregnancy-related causes than their white counterparts, while Black infants are two times more likely to die within their first year than white infants. Reasons for the disparities are nuanced, but many point to systemic racism in the health care system that dismisses Black women’s symptoms.  

That these fears are not unwarranted is horrifying, but to the extent that people are aware of them suggests that the misinformation on social media is not the only message getting out, and that accurate information is being provided by knowledgeable and trusted groups such as In Our Own Voice.

There is no question that right-wing, anti-abortion forces are behind much of the misinformation about contraception that is rampant on social media. But why? After all, if their concern is limiting abortions, the most effective way is to limit the number of unintended pregnancies, and this is what contraceptives do. While I have heard this argument made by a number of organizations and individuals who work for funding of contraception but not (necessarily) abortion, it doesn’t seem to get much traction with the bulk of the right-wing “anti-abortion” movement, which is also frequently are anti-contraception. What is this about?

There are a number of possible reasons. Perhaps it is related to the fact that often those providing contraception, such as Planned Parenthood, also provide abortions so that, in the thinking of these groups, contraception becomes tainted by association. It may also be a revulsion to sex, especially if undertaken for any purpose other than conception – in marriage.

But if sex is only ok if it is for conception and within marriage, why would they want to deny contraception to women who are having sex when they are not married and are not desiring to be pregnant? One answer is that they have an overall intent to control, restrict, and punish women, who they believe should have no agency. Men, of course, are just men and can be forgiven their “lack of control”, and even rape (like some presidents) but women are guilty and sinful even when they are the victims of that rape.

It is likely that the misinformation on social media is a result of all these factors, from “influencers” who are seeking fame and fortune to those promoting right-wing political and social agenda. Or maybe it is just all about providing misinformation so people can not effectively do what they want to. Whatever the reason, however, women should not be forced to risk pregnancy when effective and safe contraception is available, and certainly not be forced to find themselves requiring, and unable to get, an abortion.

Whatever the intent of the “misinformers” is, the result is the same, and bad.