Herb Denenberg Column for week of October 7, 2002


There's a medical malpractice crisis in Pennsylvania. Almost everyone agrees we ought to do something about it. But let me offer a few observations on what else requires urgent action.


The medical profession, after correctly documenting a malpractice crisis, sees the problem as one of trial lawyers, and, consequently, sees the solution as restricting the right to sue or capping recoveries. This, of course, is always the easiest solution, also adopted by tobacco and drug companies and manufacturers intent on avoiding liability for dangerous and defective products. You can always cut the costs of lawsuits and the insurance required to pay for their defense and satisfaction by either abolishing the right of action altogether or partially restricting the right of recovery and the damages payable. But that doesn't get to the root of the legal, insurance, and medical problem.


The legal (lawsuit) component of the malpractice problem should be solved by legal reforms that are fair to the victim, but still provide economies by enhancing the fairness and efficiency of the lawsuit process. You can make a case, either way, for some of the reforms advocated by the doctors, such as those relating to joint liability and the venue of the lawsuit (where the lawsuit must be brought).


But the doctors and their medical societies rarely see the other pieces of the malpractice solutions as requiring urgent action. Let me give you my favorite example which is also a symbol of the basic problem. I'll start with a little history that will make an ironclad case. On March 20, 1847, the great Hungarian physician and scientist, Ignaz Philipp Semmelweis, realized that the epidemic of childbirth fever of the time was caused by physicians and their medical students. They would go from doing autopsies to delivering babies without washing and otherwise disinfecting their hands in between. The problem was the putrid or so-called cadaveric material on the hands of physicians soon transmitted to pregnant women, who would soon die from childbirth fever.


So Dr. Semmelweis required the physicians in his service to wash their hands in a solution of chloride and lime, an approach he soon extended to utensils, instruments and the like. His discovery and teachings were widely rejected by the medical profession. As an article by Frank Slaughter in Collier's Encyclopedia described his place in history: "A pioneer in antiseptic obstetrics and surgery, he was the classic example of the dedicated scientist whose very dedication antagonized entrenched conservatism and eventually destroyed him."


Finally, the views of Semmelweis were universally accepted and acclaimed. Now physicians and other health care providers know when they are supposed to wash their hands. But, unfortunately, most accept the theory of handwashing but not the practice. According to the Johns Hopkins medical newsletter, Health After 50, "86 percent of doctors and 70 percent of nurses often neglect to wash their hands before making patient contact." All other studies that I've heard of confirm that general conclusion. It is not just a shocking conclusion, but a scandal and disgrace. The handwashing failure is one of the major factors causing the epidemic of hospital infections which kill an estimated 20,000 Americans a year and causes many more infections that are not fatal but can be disabling and expensive to treat and cure. That 20,000 figure is low, and doesn't include office transmitted infections, home health care transmitted infections and many other forms of disease transmission other than hospital infections.


The failure of the medical profession, for the last 155 years, to heed the lesson of Semmelweis is a tribute to its arrogance, its lack of concern for patient safety, and its lack of leadership in providing safe and high quality medical care. In view of that, I have a simple question for the medical profession and for legislators and other politicians dealing with the urgent malpractice problem: Why not treat the handwashing crisis with the same urgency as the malpractice crisis?


Needless to say, I use handwashing as a symbol of the whole quality of medical care picture. The malpractice crisis has at least three components all requiring immediate attention: The legal issues (relating, for example, to where a lawsuit may be brought), the insurance issues (relating to the fact that the insurance commissioner is a puppet representing the insurance industry rather than a protector of the public interest), and the medical issues (relating to improving quality, eliminating medical mistakes and misadventures, and thus lowering the cost of health care and medical malpractice insurance, while saving lives and money).


Legislators should not consider an emergency bailout of the medical profession in Pennsylvania and elsewhere unless and until the medical profession comes up with a long delayed menu for enhancing the quality of care and preventing malpractice rather than just paying for it.


(Herb Denenberg is a former Pennsylvania Insurance Commissioner and consumer advocate.)

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