The term “unnatural causes” began appearing in health care articles soon after the 2004 publication of “Undoing Racism in Public Health,” a report sponsored by the W.K. Kellogg Foundation. Its author, Debora Barnes-Josiah, PhD, of the University of Nebraska Medical Center, reported on growing evidence that public policies administered by our institutions have a role in creating and perpetuating racial and ethnic health disparities. The paper produced a compilation of information gleaned from maternal and child health experts across the country. The findings questioned whether communities can focus on modifying lifestyle behaviors or risk factors without considering socioeconomic context.
The Kellogg Foundation then funded a series of papers by the Joint Center for Political and Economic Studies in Washington, DC. The series addressed trends in child health from 1997 to 2006 and included statistics on low birth weight and activity limitations. The articles explored the gaps between America’s urban poor and the middle to upper classes in access to nutritious food and medical care and the incidence of violence and conditions such as asthma, diabetes, high blood pressure, and arthritis.
In 2008, California Newsreel with Vital Pictures, Inc., produced “Unnatural Causes: Is Inequality Making Us Sick?” This documentary series, broadcast by PBS, sounded the alarm about disturbing socioeconomic disparities in health. The series presented a growing body of evidence suggesting that the incidence of disease and ill health in the poor is much more than unlucky genes and bad habits. It presented many examples of how the social circumstances in which we are born and where we live and work can put us at risk for major and often fatal diseases. The series also explored the effects of chronic stress on low-income individuals living in dangerous neighborhoods.
The series showed that individual responsibility and behavior changes are critical but stressed that they are only part of the picture. It argued that if we want Americans to be healthy, we need to address housing, education, job training, social support, environmental mismanagement, and economic policies.
The documentary pointed out that, among developed nations, the U.S. has the greatest gap between high and low mortality rates within a country, the highest number of people living alone, the smallest middle class, the highest homicide rate, the highest incarceration rate, the highest child poverty rate, and the lowest voter turnout. The U.S. was second in the most hours worked. (New Zealand beat us in 2008.) The claim was made that recent Mexican immigrants, although poorer, tend to be healthier than the average low-income American. The longer immigrants are in this country, the worse their relative health becomes.
Many current articles on the subject ask doctors to speak out on these issues. Many—including lawmakers—listen when doctors speak out about important social and economic conditions that harm or benefit health. Academic medical centers are also powerful economic engines and political forces. We can all help the public expand its idea of risk factors so the social determinants of health equity are included in discussions.
In 2010, airborne hazardous substances have been singled out as the focus of “unnatural causes,” and we should soon see legislation and court actions reducing or banning the use of asbestos, refractory ceramic fibers, and other machine-made mineral fibers that can be inhaled into the lungs. These irritants also affect the skin, eyes, and throat. Doctors need to ask questions about the environment in which their patients live and work to assess exposure to such fibers. Failure to ask about or to recognize such exposure will certainly find its way into future claims. We will provide updates on any key court decisions and legislation in future issues.
Language added by Representative Henry Waxman (CA-D) to the recent House version of the federal health care bill protects doctors from new legal exposures whenever medical standards or practice guidelines are in question. Unfortunately, this language was not added to the Senate version—the version that was passed into law. We have continued to encourage Representative Waxman, who is chair of the Energy and Commerce Committee, to put his language into any bill introduced that amends the health care bill.
HR 5690 was introduced on July 1 by Georgia Republican Phil Gingrey, MD. The bill, titled the Meaningful End to Defensive Medicine and Aimless Lawsuits (MedMal) Act of 2010, allows for an early offer for full economic damages and legal fees to be made within six months of a claim being filed. No further legal action could commence if the offer is accepted by the claimant. If the offer is rejected, an automatic cap of $350,000 on noneconomic damages (or lower by state law) would apply to future litigation.
In Maryland, bills to substantially increase the cap for noneconomic damages from a current base of $680,000 to $740,000 were successfully defeated. HB 622 and SB 769 mirrored a similar bill defeated in 2009.
The Maryland Court of Appeals decided on two pertinent cases late last year. In University of Maryland Medical System Corporation v. Waldt, 411 Md. 207 (2009), the court said that with reference to standards for expert testimony, only activities contributing to or advancing the expert’s active profession would be deemed “professional activities.” And in McQuitty v. Spangler, 410 Md. 1 (2009), the court held that patients can sue doctors who fail to provide enough information about treatment risks and alternatives. This will expand a doctor’s obligations under state informed-consent laws.
On May 4, the Ohio Supreme Court held in Jaques v. Manton, that a defendant in a personal injury case can introduce evidence of write-offs accepted by a health provider that reduced the actual cost of the plaintiff’s medical care to an amount lower than the billed amount.
Two incumbent pro-medical liability reform justices will be on the ballot for the Ohio Supreme Court this fall. Justice Maureen O’Connor is hoping to be the chief justice, and Justice Judith Lanzinger is seeking reelection.
HB 361 (Murray-D) passed the Ohio House Policy Committee but is being held up in the House Rules Committee. The Doctors Company has joined the business and medical communities in strongly opposing the bill. HB 361 proposes allowing “phantom damages” to be paid. Phantom damages are the full amount billed by the doctor, not the reduced amount paid by the health insurer.
In March, the Texas Supreme Court reviewed Rankin v. Methodist Healthcare System of San Antonio, Ltd., 261 S.W.3d 93 (2008), and ruled that the 10-year statute of repose for medical liability claims is constitutional. The majority opinion stated that the current law does not interfere with an individual’s right to file and that the state’s law was a “reasonable exercise of the legislature’s power to act in the interest of the general welfare.”
On July 1, the Washington Supreme Court overturned a 2006 law that required plaintiffs to give a 90-day notice before suing health care providers (Waples v. Yi, 2010 Wash. LEXIS 538). The court declared the requirement to be unconstitutional and in violation of the separation of powers between the legislative and judicial branches of government.
In Wisconsin, SB 203 (Plale-D) was defeated. This bill proposed expanding the right to sue to include parents of adult children in medical liability wrongful death cases.
The Doctor’s Advocate is published by The Doctors Company to advise and inform its members about loss prevention and insurance issues.
The guidelines suggested in this newsletter are not rules, do not constitute legal advice, and do not ensure a successful outcome. They attempt to define principles of practice for providing appropriate care. The principles are not inclusive of all proper methods of care nor exclusive of other methods reasonably directed at obtaining the same results.
The ultimate decision regarding the appropriateness of any treatment must be made by each health care provider in light of all circumstances prevailing in the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.
The Doctor’s Advocate is published quarterly by Corporate Communications, The Doctors Company. Letters and articles, to be edited and published at the editor’s discretion, are welcome. The views expressed are those of the letter writer and do not necessarily reflect the opinion or official policy of The Doctors Company. Please sign your letters, and address them to the editor.