Rising premiums in Pa. threaten access to health care;Lawyers say stop making mistake

Rising premiums in Pa. threaten access to health care, doctors and hospitals say. So stop making mistakes, lawyers respond.
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Kathleen Ann Kensey died after getting a transfusion of the wrong type of blood.
By Josh Goldstein
INQUIRER STAFF WRITER

While doctors and hospital executives are campaigning hard in Harrisburg for legal relief from high malpractice verdicts, the lawyers who represent injured patients have an equally strong response: Stop making mistakes.

If doctors and hospitals reduced the number of preventable medical errors, the lawyers say, there would be fewer lawsuits and consequently lower malpractice premiums.

"Any reform has to take into account . . . not only the court system, but also the role played by hospitals and doctors in making mistakes that cause tragedies," said Frank M. McClellan, a Philadelphia plaintiff lawyer.

McClellan represents the family of a West Philadelphia woman who died last year because of a medical mistake. The hospital acknowledges that she received an incompatible blood transfusion.

Last August, Kathleen Ann Kensey was diagnosed with ovarian cancer and scheduled for surgery the next week.

At the Hospital of the University of Pennsylvania, Kensey received a transfusion to get her blood count up before her surgery. Everything was going well until a nurse gave Kensey a second bag of blood.

The blood in the second bag was Type A-positive and had another patient's name on it. Kensey's blood was Type O.

During the next six hours, Kensey developed a fever, became nauseated, and suffered a heart attack. Resuscitation failed. She died in front of family members because of the incompatible transfusion.

Now her family is suing the hospital as well as the doctors and nurses who treated her.

"Kathy did not have to die that horrible death," said her older sister, Doris Kensey-Chandler. "She couldn't get air, her body just broke down, and they worked on her and worked on her, but they didn't [figure out] what was going on."

The hospital does not dispute that Kensey received an incompatible transfusion.

"When we became aware of the incident, we contacted the family to explain what had happened and express our profound sorrow," hospital spokeswoman Rebecca Harman said. "This was a tragic and rare event, which also affected all members of the hospital's family, especially those directly involved in Ms. Kensey's care."

The Kensey suit is one of more than 1,000 medical malpractice cases that are expected to be filed in Philadelphia this year.

The number of malpractice cases filed in the city rose 13 percent between 1996 and 2000, according to court data. Insurer payouts to cover this liability – including out-of-court-settlements - rose even faster.

The state agency that provides the second tier of malpractice coverage for doctors and hospitals - the CAT Fund - saw its payout in Philadelphia cases go up by 37 percent over the same five years.

Last year in Philadelphia Common Pleas Court, there were 30 jury verdicts awarding $1 million or more in malpractice cases, according to court records.

Doctors and hospital executives blame the number of suits and the size of awards for the dramatic increase in their malpractice premiums.

Yet the current increases in premiums of 30 percent to 100 percent in the Philadelphia area are far out of proportion with the rise in the number of cases in the city and the size of the payouts.

From 1999 to 2000, 3 percent more suits were filed in the city, according to court records, and 11 percent more money was paid to plaintiffs by the CAT Fund – the Pennsylvania Medical Professional Liability Catastrophe Loss Fund.

Between 44,000 and 98,000 Americans die each year from medical errors, according to the Institute of Medicine. Hundreds of thousands more are injured.

Doctors and hospital administrators acknowledge that mistakes must be addressed, but they argue that those errors are not why malpractice premiums are rising.

"The trial lawyers are trying to divert the true nature of the crisis off onto medical errors," said Roger Mecum, director of the Pennsylvania Medical Society, which represents the state's doctors. "Even though we have one of the worst malpractice [cost] crises in the country, there isn't any evidence that Pennsylvania has a greater problem with medical errors."

He said that it was the number of suits and the amount of money paid on those claims, particularly in Philadelphia, that was driving up the premiums.

Ultimately, patients' access to care could be harmed, doctors and hospital administrators say, unless the malpractice costs are brought under control.

Their solution is tort reform - legislation they are pushing in Harrisburg to cap damages for pain and suffering, establish standards to judge the qualifications of expert witnesses, and impose sanctions to reduce frivolous suits.

"We need tort reform," said Andrew Wigglesworth, president of the Delaware Valley Healthcare Council, a trade group for local hospitals and health systems. "The reforms . . . are those to ensure that people receive fair and appropriate compensation when they are injured balanced with society's ability to pay."

Timothy A. Shollenberger, president of the Pennsylvania Trial Lawyers Association, called tort reform unfair because it would make it more difficult for injured patients or their survivors to collect appropriate damages.

And the lawyers argue that doctors and hospitals do such a poor job of disciplining themselves that the threat of a suit is often the only leverage available to force providers to fix problems and prevent errors.

"The bottom line in this whole debate should be public safety, not cost," said Thomas Kline, a prominent Philadelphia lawyer. "Public safety is being protected by a tort system which holds medical providers equally accountable for negligence as everyone else in our community."

Health-care providers say they are looking for ways to reduce injuries and create an environment in which mistakes will be prevented or will be caught before they cause harm.

Starting today, hospitals are required to tell patients when they have been harmed during their treatment, or risk losing their accreditation. The new standard by the Joint Commission on Accreditation of Healthcare Organizations, which monitors safety and quality at 5,000 hospitals nationwide, is intended to foster open discussion of mistakes and help reduce the problem without increasing the number of lawsuits.

And there is some evidence that hospitals that have been candid with patients about mistakes are less likely to be sued.

Locally, the Delaware Valley Healthcare Council has launched a $1.6 million project to reduce medication errors at the region's 73 hospitals.

While the legal and medical establishments try to sway Harrisburg legislators, cases such as Kathy Kensey's show that malpractice is not just about the cost of insurance premiums, the number of lawsuits, and the size of jury awards.

Kensey was the third of seven children. She was single, and her sisters describe her as the glue for her family. She remembered birthdays, anniversaries and other special occasions. She planned the parties and made sure there was cake.

In addition to working full time, Kensey was the primary caretaker for her 69-year-old mother, Vera, who was partially paralyzed after hitting her head in a fall.

"Her shoes are very hard to fill," Kensey-Chandler said, "even by six other people."

When Kensey went to the hospital after her cancer diagnosis, she was scared about the surgery. Two sisters were with her, sitting by her bedside, as the wrong blood dripped into her veins.

"She didn't get a chance," said her sister Sharon Jackson. "And it just makes me mad because so many people were trying to figure out what was wrong, but no one checked the blood."