Tort Reform Measures Increase Risk of Birth Injuries Such as Kernicterus

BOSTON, MA, March 29, 2013

"The U.S. health system is the most expensive in the world, but comparative analyses consistently show that United States underperforms relative to other countries on most dimensions of performance."

That is the lead sentence of a recent comprehensive report by the non-partisan Commonwealth Fund called "Mirror, Mirror, on the Wall" - How the Performance of the U.S. Health Care System Compares Internationally - June 2010 (see link below). According to the report, the U.S. ranks dead last on patient safety; although our system is far more costly than any other system in the world. The authors point out that we have no national policies that promote quality improvement.

Instead, we see initiatives to reduce "defensive medicine" to allow doctors to do fewer tests to save costs, regardless of how many more lives are lost due to undiagnosed conditions. Recent statistics demonstrate that tort reform measures, such as those that lead to less testing of patients, will cause thousands more to die (beyond the nearly 100,000 that die each year from medical errors), and many more to be severely injured. We are justifiably outraged when auto makers reason that it is better to have a statistically significant number of people die than to correct safety problems. Since Americans don't accept this reasoning and the disregard for human lives by auto makers, why would we accept it from our hospitals and the medical system, whose errors cause far more deaths than cars? There are at least two answers: (1) everyone drives cars, but not enough of us see ourselves or our children as vulnerable patients relying on safe care, and (2) the medical community keeps changing the topic to tort reform and defensive medicine each time someone mentions medical errors.

Doing less testing is of particular concern with regard to babies who suffer kernicterus (brain damage) from extreme jaundice. Kernicterus is a very devastating birth injury that is entirely preventable, but occurs much too often. It results from very high levels of bilirubin (hyperbilirubinemia), which is a yellow pigment that is created in the body as part of the recycling of old blood cells. When the bilirubin levels become too high, the skin can look yellow, or jaundiced. The Centers for Disease Control estimates that at least 60 percent of babies display symptoms of jaundice. It can be easily tested, diagnosed, and treated. Unfortunately, many times, this preventable condition results from health care providers failing to test the baby's bilirubin levels , or failing to implement immediate measures such as phototherapy and an exchange transfusion to bring down the levels before brain damage occurs. Tort reform measures that would lead to less testing and treatment would certainly increase the risk that babies may suffer kernicterus.

When the U.S. has fallen markedly short in ways that impact our children such as in education, it creates a minor panic that results in national initiatives like "Race to the Top" and "No Child Left Behind." We need such a national initiatives that strives to eliminate harm to our children from medical errors, not those that increase the risk of harm.

http://www.commonwealthfund.org/~/media/Files/Publications/Fund%20Report/2010/Jun/1400_Davis_Mirror_Mirror_on_the_wall_2010.pdf