COMMENTARY

Malpractice Risks Under the ACA; More

Wayne J. Guglielmo, MA

Disclosures

December 23, 2013

In This Article

Double Amputee: Lucky to Be Alive, or Malpractice?

Depending on which side of the courtroom one happens to be sitting in, New Yorker Stacey Galette, 33, is either lucky to be alive or a victim of a botched surgery and substandard care, as a story on the Website of the New York Daily News makes clear.[2]

In 2009, Galette entered Winthrop University Hospital in Mineola, New York, for laparoscopic removal of an ectopic pregnancy. During the procedure, Galette says in her claim against the hospital, the surgeon punctured her colon, leading to blood poisoning and gangrene. Placed in the intensive care unit, she received powerful intravenous antibiotics, underwent a colostomy, received skin grafts, and had both feet amputated at the ankle. On the 64th day of her hospitalization, doctors removed both of her legs below the knee.

Galette's complaint further alleges that doctors at Winthrop failed "to detect the 5-millimeter hole in her colon," despite her postsurgical pain, fever, and abnormal heart rate.

In the trial that began early last month and is expected to last upward of 6 weeks, attorneys for the hospital argue that the puncture happened after the surgery owing to the patient's underlying bowel condition, that postsurgical CT showed no puncture, and that the treating doctors acted reasonably on the basis of available evidence. And even if the puncture did occur during the laparoscopic procedure, the defense says, "it is a recognized risk [of the procedure] and not medical malpractice."

"Ms. Galette is alive today because the health providers at Winthrop University Hospital listened to her complaints...and made adjustments to her treatment," the lead defense attorney said in his opening statement to jurors.

VA Med-Mal Payouts Mount

The Veterans Health Administration (VHA), the medical component of the US Department of Veterans Affairs (VA), generally garners high marks from evaluators. In past years, for instance, studies from the Rand Corporation, the Congressional Budget Office, and Harvard Medical School, among others, have found that the VHA does as well or better than other public and private healthcare sectors in a variety of areas, including cancer care for men aged 65 years or older.

Despite this, the VA has paid out roughly $845 million in malpractice claims over the past decade, according to an analysis by the Atlanta Journal-Constitution and Cox Media Group. The analysis was reported on ActionNewsJax.com, a Cox affiliate, among other news outlets.[3]

Payouts peaked in 2012, when 454 settlements and awards cost the VA $98.3 million.

Department officials defend the VHA's track record, arguing that its malpractice claims rate is relatively low compared to the number of patients it treats annually. For example, in 2012, the year payouts soared to their highest level, the VHA treated more than 6.3 million veterans but had only 1544 claims filed against it.

But compared with the private sector, do more of these claims result in payouts? One academic researcher who's studied the question says yes, but only barely. The VA pays out on about 25% of its malpractice claims, vs 20% in the private health system, reports Dr. Anupam Jena, an assistant professor of health policy and medicine at Harvard Medical School.

Still, the VHA has its share of critics. "It's very apparent because of the spike in payouts that have been happening over a number of years that they're [the VA] woefully falling behind on a curve that they should never be behind in the first place," says Rep Jeff Miller (R, Florida), chairman of the House Committee on Veterans' Affairs.

Rep Miller is especially critical of the VA's tendency to give performance bonuses to some of the very doctors who have delivered substandard care, including a surgeon who had been suspended for 2 weeks without pay for leaving a surgery early. (VHA doctors are shielded from individual liability.)

"They use bonuses like handing out candy at the VA," says Miller, who charges that providers who should be disciplined are typically just transferred to another hospital.

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