Tort Reform and Forced Sterilization in North Carolina

Torte - Image credit: <a href='http://www.123rf.com/photo_13722428_delicious-slice-of-home-made-sachertorte-cake.html'>digitalsun / 123RF Stock Photo</a>

In 2011 the North Carolina legislature made major changes to the law governing medical malpractice claims. This tort reform, among other things, capped non-economic damages at $500,000.

Such caps on damages do not restrict payments for financial losses, such as future income not earned due to no longer being able to work as a result of injury or death because of something a doctor did, or neglected to do. Rather it limits awards to compensate for such things as pain and suffering.

Physicians in Washington State, and elsewhere, have lobbied for tort reform. Although some physicians have been guilty of gross negligence, in many cases doctors are sued, and juries award large amounts of money, because a patient has suffered, but not necessarily because of something the physician did wrong. Because physicians worry about getting sued, they tend to practice defensive medicine, and order more tests and procedures than necessary as a result. Besides wasting money, it can cause harm. I’ve had patients who have had dozen of CT scans, because every time they go to the emergency room for abdominal pain, they get one to make sure they don’t have such things as appendicitis. The radiation from the CT scan increases the risk of developing cancer in the future. Although such scans are certainly warranted at times, I believe they are excessively ordered because of fear of getting sued.

Between 1929 and 1974, North Carolina forcibly sterilized 7600 people it deemed socially or mentally unfit. Recently the state agreed to set up a $10 million dollar fund to compensate living victims. So far they’ve identified 177, though as of 2010 the State Center for Health Statistics estimated that 2,944 victims may have still been alive. If they end up with 200 such people filing claims, they would each get $50,000. That’s only one tenth of the amount allowed in that state for non-economic damages, and one hundredth if 2000 filed claims, and infinitesimally less in a state that has no such cap. Physicians may be well off, but their pockets are not nearly as deep as a state.

If a physician inadvertently sterilized a patient while treating them for something else, they could be sued for large sums of money for depriving them the chance of procreating. If states can cap non-economic damages for doing the same, isn’t it only fair that limits be placed on non-economic damage for malpractice for physicians who were trying to do the right thing? Although that’s true in about 30 states, the Washington State Supreme Court ruled such caps unconstitutional in Sofie v. Fiberboard Corp., 112 Wn.2d 636 (1989). Although that was not a medical malpractice case, the reasoning goes against the decisions made by a majority of other states, and ignores the fact that resources are limited. No caps in theory means a jury could bankrupt an individual or company, no matter how large, and no matter how many hurt if that happened, all in the name of “justice” to benefit one person, and their legal team of course.

Medication Errors

Not infrequently Express Scripts, Medco, or other similar companies send a fax to alert me that my patient is taking two similar medications. Occasionally it’s intentional, but most of the time it means something went wrong.

Sometimes I change a patients’ medication to something similar to achieve better efficacy, to minimize side effects, or due to cost. Although I always put the changes in writing for the patient, telling them what to start and what to stop, this doesn’t always work. Patients may get an automatic refill of the original medication from the pharmacy or call it in when they notice a pill bottle is almost empty. Sometimes they go by a medication list they’ve generated, but not updated, rather than the printout I give them.

Sometimes patients end up on two similar medications after getting one from a specialist who doesn’t realize a patient is taking something, because the patient didn’t bring the list I gave them, and they don’t remember everything they take. For example I might have the patient on lisinopril for hypertension, and their cardiologist prescribes the similar benazepril.

A similar medication error happens when we tell patients to stop a medication and they don’t for similar reasons as above.

So the faxes are helpful when these things are caught, but it would be better if it occurred at the the time the prescription is sent to the pharmacy.  Ideally the pharmacy computer would automatically connect to the physician’s electronic medical record (EMR), particularly the primary care doctor, and compare medication lists. If they had medications to refill that didn’t match the EMR record, they would call to double check if the patient could not give them a good reason for the discrepancy. In addition, the pharmacy computer could keep track of all the chronic medications a patient has filled. If the patient doesn’t get the prescription refilled in a timely manner, their computer would query the physician computer to make sure it was still an active medication. If so they would call the patient (and maybe in the future talk to the patient’s medication list carried on their computer/mobile device) and remind them to refill their medication, assuming someone hadn’t stopped it, the patient was taking samples, or some other good reason.

If you use a program such as Quicken, you can download credit card and other transactions and reconcile them with entries you’ve entered. Comparing medications would be a similar process.

There are certainly barriers to such a solution. Electronic health records would need to have medication fields standardized, and there would need to be protocols to exchange the information. I’m not sure, but I think some of this already exists. Of course there are legal issues such as HIPAA.

As John Lennon said, “You may say I’m a dreamer, but I’m not the only one. I hope someday you’ll join us, and the world will be as one.”