Minorities and the Uninsured at Greatest Risk of Suffering Malpractice

Consumers of health care in the United States run a significant risk of being injured or killed by medical malpractice. More than a dozen years ago the Institute of Medicine reported that as many as 98,000 people die each year as a result of medical errors. Linda T. Kohn, Janet M. Corrigan and Molly S. Donaldson, eds., 2000, To Err Is Human: Building a Safer Health System. Washington, DC, National Academy Press. A far greater number, estimated at about one million per year, is injured each year by medical errors. Id. More recent data shows that little, if any, progress has been made in improving patient safety. Medical mistakes are still the sixth leading cause of death in this country. See Centers for Disease Control and Prevention, www.cdc.gov/nchs/fastats/lcod.htm. But these numbers tell only part of the story, because when it comes to quality of medical care in the United States, all patients are not treated equally. Minorities, poor people and those without private insurance are more likely to receive substandard care and to suffer the consequences.

Minority Patient Health Care: Statistics Tell the Story

Since 2003, the Agency for Healthcare Research and Quality (AHRQ), a branch of the Department of Health and Human Services (HHS), has been collecting and publishing data on the quality of health care in America, and disparities in the delivery of that health care. The 2010 reports, released at the end of February of this year, reveal the scope and magnitude of the problem of substandard care for minority, low-income and uninsured patients (www.ahrq.gov/qual/qrdr10.htm). They show that there has been very little, if any, progress in closing the gap. “The reports indicate that few disparities in quality of care are getting smaller, and almost no disparities in access to care are getting smaller. Overall, blacks, American Indians and Alaska natives received worse care than Whites for about 40 percent of core measures. Asians received worse care than Whites for about 20 percent of core measures. And Hispanics received worse care than Whites for about 60 percent of core measures. Poor people received worse care than high-income people for about 80 percent of core measures.” AHRQ Press release, Feb. 28, 2011, www.ahrq.gov/news/press/pr2011/qrdr10pr.htm.

The federal government has worked hard to collect data that describes the symptoms of the problem, but has done little to ferret out the root causes. The 2010 National Healthcare Quality Report and the 2010 National Healthcare Disparities Report both identify multiple areas in which minorities and poor people are placed at higher risk for injuries or death from interactions with our health care system. Minority patients, for example, had to wait longer than Caucasians to get an appointment with a doctor, placing them at risk for getting sicker, or dying, before receiving treatment. Similarly, minorities waited longer on average for treatment in emergency departments for emergent and urgent conditions.

The natural result of these delays in treatment are more serious complications, longer hospitalizations and worse outcomes. Anecdotal reports of extreme delays ' such as the one in 2008 involving a Jamaican woman filmed by a video surveillance camera as she fell over dead in a New York City emergency department waiting room and lay on the floor for over an hour before anyone took notice ' serve to highlight the problem. Medical malpractice cases are frequently based on a delay in treating the patient. The AHRQ, in these reports, has identified and quantified a systemic breakdown that directly increases the risk of this form of medical malpractice for an identifiable group.

Uninsured or Underinsured

A recent study published in the New England Journal of Medicine found discrimination against children without private insurance in gaining access to needed care from medical specialists. Joanna Bisgaier, MSW and Karin V. Rhodes, MD, Auditing Access to Specialty Care for Children with Public Insurance, N Engl J Med 2011; 364:2324-33. In this study, researchers, posing as mothers of children with conditions identified by the study authors as requiring urgent outpatient specialty care, called specialty clinics seeking an appointment. This alarming report found that, on average, 66% of children covered by Medicaid and the Children's Health Insurance Program (CHIP) were denied appointments. For example, when allergy and pulmonology clinics were contacted and asked to see a 14-year-old child with persistent, uncontrolled asthma on referral from a primary care provider or emergency department physician, 54.5% of them refused to schedule an appointment if the child had public insurance. However, all the children with private insurance were given an appointment. In another scenario, orthopedic clinics were called and told that a 12-year-old child had been seen by a pediatrician and emergency department doctors with a suspicion of a forearm fracture through the growth plate. Only 2.5 % of those with private insurance were denied an appointment. Eighty percent of those with public insurance were turned away. When neurology clinics were asked to see an 8-year-old child with new onset of afebrile seizures on referral from a primary care provider or emergency department physician, 54 % of those with public insurance were turned away, as opposed to only 11% of those with
private insurance. The Bisgaier/Rhodes study also found that even when the children with public insurance could get an appointment, they had to wait an average of 22 days longer to see a specialist than did privately insured patients.

These barriers to receiving timely, urgent specialty care place children at risk for serious complications, with the potential for permanent disabilities or, in some cases, even death. It is also important to note that the children discussed in the study were not without some insurance. The authors of the study reflected that this lack of access to medical care is undoubtedly worse for patients who lack insurance entirely.

Bad Outcomes

The Bisgaier/Rhodes study is consistent with the AHRQ finding that “Individuals with limited or no access to care (uninsured and underinsured people and those without a usual source of care) experience poor health outcomes, as well as worse quality of care.” Here again, minorities and poorer people were found to be less likely than Caucasians and those with higher incomes to be the ones who were uninsured or underinsured. Blacks and Hispanics have worse access to care in many of the areas measured in the study, while poor people had worse access on every single measure. The 2010 reports concluded that there has been no improvement in reducing these disparities in access to medical care.

Paradoxically, lack of access to health care increases the likelihood that a patient will be a victim of medical malpractice. Patients who cannot access timely medical care for diagnosis and treatment may get sicker and develop more complications, requiring more extensive and riskier treatment. For example, the AHRQ found that Blacks were less likely than Whites to receive timely fibrinolytic medication to dissolve blood clots that were causing a heart attack. The result, in addition to higher rates of mortality, is more Black patients requiring surgical intervention, which carries a host of risks, including infection. In this regard, the AHRQ found that Blacks experienced higher rates of postoperative sepsis than Whites.

Seeking Solutions

While these data certainly help to define the problem of health care disparities in America, they do little to identify the etiology. Just as in medicine, before a sickness can be properly treated, it is almost always helpful to diagnose the underlying disease causing the symptoms. Here, the 2010 AHRQ report falls far short of the goal line. It first concludes that: “Some Americans receive worse care than other Americans.” Then, in a single sentence, it simply lists a differential diagnosis: “These disparities may be due to differences in access to care, provider biases, poor provider-patient communication and poor health literacy.” Rather than simply continue to chart the course of this failing system, the AHRQ and others, including hospitals and doctors' groups concerned about the quality of health care and reducing rates of medical malpractice, should work to find the sources of the problem so that they can be effectively addressed.

The negative impacts of disparities in health care access and quality go beyond the human toll taken on victims of medical negligence. There are significant costs attached to these problems that are paid by society as a whole. The AHQR report states that the annual costs attributable to medical and surgical errors are $21 billion. This does not include the much higher costs associated with treatment of conditions made much worse by lack of access to timely medical care.

A study of the effects on children of losing health insurance found that ambulatory care became less accessible, resulting in an increase in the use of more expensive emergency department treatment, as well as longer hospital admissions. Mary E. Rimsza, MD, Richard J. Butler, PhD, William G. Johnson, PhD, Impact of Medicaid Disenrollment on Health Care Use and Cost, Pediatrics, Vol. 119, No. 5, May 2007. For each child who lost Medicaid coverage, the study estimated an annual increased cost of $2,121. This is essential data for legislators considering making changes in Medicaid funding and eligibility.

While it may appear that reducing the roles of Medicaid recipients will save money, in fact just the opposite is true. Increasing the number of uninsured people will lead to more emergency room visits, longer hospitalizations, greater morbidity and mortality, and more medical malpractice.

Putting the Information to Use

In the age of digital medical record-keeping, it should become much easier to assemble data on disparities in the provision of health care at hospitals and clinics. This information could be useful to health care administrators in identifying where disparities exist and in creating solutions to reduce these inequities. The motivation for this is both humanitarian and economic: Improving access to quality health care can increase productivity, reduce overall health care expenditures and advance the quality of life of minorities and the poor. It can also inure to the benefit of health care providers by reducing the incidence of malpractice.

Data of this type may also be useful to lawyers representing the injured victims of malpractice, as statistics showing a difference in treatment of patients based on race or type of insurance may help to elucidate the plaintiff's claims. It can be used to show that the provider is aware of, and capable of delivering, treatment required by the standard of care. It can also highlight the systemic problems that led to the specific acts of malpractice. While privacy rights may prevent the discovery of identifiable patient records, it should not be an impediment to collection of anonymous data relevant to establishing a plaintiff's claims.

Christopher D. Bernard, a member of this newsletter's Board of Editors, is a partner at Koskoff, Koskoff & Bieder in Bridgeport, CT. His practice is primarily devoted to medical malpractice cases, including birth injuries, surgical errors, hospital negligence and physician malpractice. He is listed in The Best Lawyers in America and is a member of the Birth Trauma Litigation Group of the Association of Trial Lawyers of America.

Consumers of health care in the United States run a significant risk of being injured or killed by medical malpractice. More than a dozen years ago the Institute of Medicine reported that as many as 98,000 people die each year as a result of medical errors. Linda T. Kohn, Janet M. Corrigan and Molly S. Donaldson, eds., 2000, To Err Is Human: Building a Safer Health System. Washington, DC, National Academy Press. A far greater number, estimated at about one million per year, is injured each year by medical errors. Id. More recent data shows that little, if any, progress has been made in improving patient safety. Medical mistakes are still the sixth leading cause of death in this country. See Centers for Disease Control and Prevention, www.cdc.gov/nchs/fastats/lcod.htm. But these numbers tell only part of the story, because when it comes to quality of medical care in the United States, all patients are not treated equally. Minorities, poor people and those without private insurance are more likely to receive substandard care and to suffer the consequences.

Minority Patient Health Care: Statistics Tell the Story

Since 2003, the Agency for Healthcare Research and Quality (AHRQ), a branch of the Department of Health and Human Services (HHS), has been collecting and publishing data on the quality of health care in America, and disparities in the delivery of that health care. The 2010 reports, released at the end of February of this year, reveal the scope and magnitude of the problem of substandard care for minority, low-income and uninsured patients (www.ahrq.gov/qual/qrdr10.htm). They show that there has been very little, if any, progress in closing the gap. “The reports indicate that few disparities in quality of care are getting smaller, and almost no disparities in access to care are getting smaller. Overall, blacks, American Indians and Alaska natives received worse care than Whites for about 40 percent of core measures. Asians received worse care than Whites for about 20 percent of core measures. And Hispanics received worse care than Whites for about 60 percent of core measures. Poor people received worse care than high-income people for about 80 percent of core measures.” AHRQ Press release, Feb. 28, 2011, www.ahrq.gov/news/press/pr2011/qrdr10pr.htm.

The federal government has worked hard to collect data that describes the symptoms of the problem, but has done little to ferret out the root causes. The 2010 National Healthcare Quality Report and the 2010 National Healthcare Disparities Report both identify multiple areas in which minorities and poor people are placed at higher risk for injuries or death from interactions with our health care system. Minority patients, for example, had to wait longer than Caucasians to get an appointment with a doctor, placing them at risk for getting sicker, or dying, before receiving treatment. Similarly, minorities waited longer on average for treatment in emergency departments for emergent and urgent conditions.

The natural result of these delays in treatment are more serious complications, longer hospitalizations and worse outcomes. Anecdotal reports of extreme delays ' such as the one in 2008 involving a Jamaican woman filmed by a video surveillance camera as she fell over dead in a New York City emergency department waiting room and lay on the floor for over an hour before anyone took notice ' serve to highlight the problem. Medical malpractice cases are frequently based on a delay in treating the patient. The AHRQ, in these reports, has identified and quantified a systemic breakdown that directly increases the risk of this form of medical malpractice for an identifiable group.

Uninsured or Underinsured

A recent study published in the New England Journal of Medicine found discrimination against children without private insurance in gaining access to needed care from medical specialists. Joanna Bisgaier, MSW and Karin V. Rhodes, MD, Auditing Access to Specialty Care for Children with Public Insurance, N Engl J Med 2011; 364:2324-33. In this study, researchers, posing as mothers of children with conditions identified by the study authors as requiring urgent outpatient specialty care, called specialty clinics seeking an appointment. This alarming report found that, on average, 66% of children covered by Medicaid and the Children's Health Insurance Program (CHIP) were denied appointments. For example, when allergy and pulmonology clinics were contacted and asked to see a 14-year-old child with persistent, uncontrolled asthma on referral from a primary care provider or emergency department physician, 54.5% of them refused to schedule an appointment if the child had public insurance. However, all the children with private insurance were given an appointment. In another scenario, orthopedic clinics were called and told that a 12-year-old child had been seen by a pediatrician and emergency department doctors with a suspicion of a forearm fracture through the growth plate. Only 2.5 % of those with private insurance were denied an appointment. Eighty percent of those with public insurance were turned away. When neurology clinics were asked to see an 8-year-old child with new onset of afebrile seizures on referral from a primary care provider or emergency department physician, 54 % of those with public insurance were turned away, as opposed to only 11% of those with
private insurance. The Bisgaier/Rhodes study also found that even when the children with public insurance could get an appointment, they had to wait an average of 22 days longer to see a specialist than did privately insured patients.

These barriers to receiving timely, urgent specialty care place children at risk for serious complications, with the potential for permanent disabilities or, in some cases, even death. It is also important to note that the children discussed in the study were not without some insurance. The authors of the study reflected that this lack of access to medical care is undoubtedly worse for patients who lack insurance entirely.

Bad Outcomes

The Bisgaier/Rhodes study is consistent with the AHRQ finding that “Individuals with limited or no access to care (uninsured and underinsured people and those without a usual source of care) experience poor health outcomes, as well as worse quality of care.” Here again, minorities and poorer people were found to be less likely than Caucasians and those with higher incomes to be the ones who were uninsured or underinsured. Blacks and Hispanics have worse access to care in many of the areas measured in the study, while poor people had worse access on every single measure. The 2010 reports concluded that there has been no improvement in reducing these disparities in access to medical care.

Paradoxically, lack of access to health care increases the likelihood that a patient will be a victim of medical malpractice. Patients who cannot access timely medical care for diagnosis and treatment may get sicker and develop more complications, requiring more extensive and riskier treatment. For example, the AHRQ found that Blacks were less likely than Whites to receive timely fibrinolytic medication to dissolve blood clots that were causing a heart attack. The result, in addition to higher rates of mortality, is more Black patients requiring surgical intervention, which carries a host of risks, including infection. In this regard, the AHRQ found that Blacks experienced higher rates of postoperative sepsis than Whites.

Seeking Solutions

While these data certainly help to define the problem of health care disparities in America, they do little to identify the etiology. Just as in medicine, before a sickness can be properly treated, it is almost always helpful to diagnose the underlying disease causing the symptoms. Here, the 2010 AHRQ report falls far short of the goal line. It first concludes that: “Some Americans receive worse care than other Americans.” Then, in a single sentence, it simply lists a differential diagnosis: “These disparities may be due to differences in access to care, provider biases, poor provider-patient communication and poor health literacy.” Rather than simply continue to chart the course of this failing system, the AHRQ and others, including hospitals and doctors' groups concerned about the quality of health care and reducing rates of medical malpractice, should work to find the sources of the problem so that they can be effectively addressed.

The negative impacts of disparities in health care access and quality go beyond the human toll taken on victims of medical negligence. There are significant costs attached to these problems that are paid by society as a whole. The AHQR report states that the annual costs attributable to medical and surgical errors are $21 billion. This does not include the much higher costs associated with treatment of conditions made much worse by lack of access to timely medical care.

A study of the effects on children of losing health insurance found that ambulatory care became less accessible, resulting in an increase in the use of more expensive emergency department treatment, as well as longer hospital admissions. Mary E. Rimsza, MD, Richard J. Butler, PhD, William G. Johnson, PhD, Impact of Medicaid Disenrollment on Health Care Use and Cost, Pediatrics, Vol. 119, No. 5, May 2007. For each child who lost Medicaid coverage, the study estimated an annual increased cost of $2,121. This is essential data for legislators considering making changes in Medicaid funding and eligibility.

While it may appear that reducing the roles of Medicaid recipients will save money, in fact just the opposite is true. Increasing the number of uninsured people will lead to more emergency room visits, longer hospitalizations, greater morbidity and mortality, and more medical malpractice.

Putting the Information to Use

In the age of digital medical record-keeping, it should become much easier to assemble data on disparities in the provision of health care at hospitals and clinics. This information could be useful to health care administrators in identifying where disparities exist and in creating solutions to reduce these inequities. The motivation for this is both humanitarian and economic: Improving access to quality health care can increase productivity, reduce overall health care expenditures and advance the quality of life of minorities and the poor. It can also inure to the benefit of health care providers by reducing the incidence of malpractice.

Data of this type may also be useful to lawyers representing the injured victims of malpractice, as statistics showing a difference in treatment of patients based on race or type of insurance may help to elucidate the plaintiff's claims. It can be used to show that the provider is aware of, and capable of delivering, treatment required by the standard of care. It can also highlight the systemic problems that led to the specific acts of malpractice. While privacy rights may prevent the discovery of identifiable patient records, it should not be an impediment to collection of anonymous data relevant to establishing a plaintiff's claims.

Christopher D. Bernard, a member of this newsletter's Board of Editors, is a partner at Koskoff, Koskoff & Bieder in Bridgeport, CT. His practice is primarily devoted to medical malpractice cases, including birth injuries, surgical errors, hospital negligence and physician malpractice. He is listed in The Best Lawyers in America and is a member of the Birth Trauma Litigation Group of the Association of Trial Lawyers of America.