Situational Ethics in Oregon

Cody Hoesly

Most people would probably agree that our state legislators are working hard to do what they think is best for us and our state. Being only part-time politicians, and average citizens most of the time, they are closer to the people than professional politicians and less beholden to special interests.

Sometimes, however, those good intentions can be subverted by special interests, especially when the citizen legislator lacks independant wealth or celebrity, or enough guts to do what's right in the face of personal risk.

A case in point is last week's highly publicized story involving OHSU, patient care, and the technical legal doctrine of soveriegn immunity. It's the story of a little boy whose life was destroyed by well-trained, well-meaning, but in this case ultimately negligent health care workers. How can the boy ever be made whole again? What can OHSU do to improve its care?

In our society, absent any government agency dedicated to solving these problems, there is only one solution (and perhaps the best solution): a lawsuit. When boy sues hospital, you'd think the story ends with a fair recovery that would help boy and his family cope with the tragedy that has forever altered their lives. You'd be wrong.

OHSU doesn't deny negligence, in fact it admits it. However, OHSU turns to a sneaky legal doctrine called sovereign immunity, which says that no one can sue the state without the state's consent (and OSHU is the state, it says, because it's a state hospital - even though it receives less than 10% of its funding from the state). A remnant of the British monarchy ("the King can do no wrong"), the doctrine really has no place in a democracy, but I digress. The point here is that when OHSU denied the boy a fair recovery (limiting him to the $200,000 maximum allowed by state law), OSHU claimed that it should be treated differently from all other hospitals in Oregon, simply because it has a different management structure.

There was an attempt last legislative session by State Senator Vicki Walker (never one to back down from a fight), to take away sovereign immunity when state agencies are in contempt of court. Things were going well until the bill hit the desk of Senator Ginny Burdick. In her "average citizen" life, Burdick works for an ad agency - of which OHSU is a major client. Small wonder then that she killed the provision using the power of her post as committee chairperson. (Not to be outdone, Governor Kulongoski also threatened to veto the bill if the provision stayed in.)

While others, such as Senator Ted Ferrioli, also use the power of their offices to keep their bread buttered, somehow it's more disappointing in a case such as this, when it's liberals siding with the power players against a little boy, who is now blind, quadriplegic, uneducable and totally dependent on care givers for all aspects of his daily activities and care. But, as Burdick said, when you've got a citizen legislature, sometimes these things just happen.

Is it possible to eliminate these kinds of cases, where special interests, or a citizen legislator's private interests, trump the public good? Probably not. But hopefully this story will inspire you to keep watch on your representatives. Maybe we can't plug all the leaks, but let's at least stop this one.

On a side note, in what will perhaps be her last major decision, Justice O'Connor voted to limit sovereign immunity when people declare bankruptcy. The decision was 5-4 and surely would have gone the other way if Alito had been on the bench instead.

Comments

  • Becky (unverified)
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    We need to get a handle on this sovereign immunity issue before we have everyone's health dependant on the State via a state-funded health care system.

    I think this situation is also very illuminating when combined with other things we know about Ginny Burdick. It's really time that she be sent back to the private sector and given no more opportunities to suppress the will of the everyday people of Oregon for the benefit of the powerful.

  • Phen (unverified)
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    I'm not sure the issue is sovereign immunity so much as it is that the malpractice system doesn't work well. We should consider using a system analogous to workers' compensation instead. While workers' comp isn't perfect (no system can be), at least it is relatively efficient in handling the vast majority of our 100,000 injury claims every year in Oregon outside the court system. It also preserves an injured worker's right to administrative and eventually judicial proceedings in case his or her claim isn't being addressed satisfactorily.

    If we had a similar way of handling medical injuries, there could be a "no fault" structure that would provide fair compensation for the great majority of cases without the hugely expensive delays and legal fees that plague the current system. Just eliminating those expenses would both increase the money available to compensate innocent victims quickly - when they most need it - and reduce the cost of insurance that's threatening to create a severe shortage of providers, especially in rural areas and in OB/GYN.

    The point would be not to take away the right to due process, but to create a more efficient due process that disposes quickly of the more typical cases while preserving options for the outliers. We also, I think, need to create better ways of identifying the incompetent providers and disincentivizing defensive medicine, both of which could be done more effectively inside a redesigned malpractice system.

  • Bill (unverified)
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    The original post on this topic is right on. Phen's idea of reducing medical liability claims to a workers compensation-type system is mis-guided. When workers comp was invented, the civil rights of injured workers all over America were sacrificed to a compromise made between legislators and corporate power that was supposed to preserve remedies and processes, but streamline the system and make it cheaper to operate. Over the decades after that deal-with-the-devil was struck, the devil kept coming back for more sacrifice, first taking away the right to jury trials, then taking away the right to appeal administrative decisions to real judges, and finally, turning over the controla of the system to insurance companies and revolving door bureaucrats who make sure every injured Oregonworker has to fight tooth and tong for every dime of compensation they were supposed to receive without a contest.

    Corporate medicine, just like the rest of corporate America, wants a "no-fault" system because it is cheap and because it vastly reduced the likelihood that any claimant will be made whole, and finally, because it lends itself to future political manipulation to erode even the meager benefits it starts out providing. But most of all, corporate power wants to avoid the accountability that comes with the right to have claims determined by citizen juries. When ordinary people make the decisions whether conduct has met or failed the test of reasonable care, corporations can be forced by pocket-book results to pay attnetion to safety, to correct failed systems, to put the necessary resources into redundancy and employee trianing and safety equipment and failsafe mechanisms of all sorts. In short, jury's make moneyed interests spend some of it on human health and safety. Take the citizens out of the decision-making (as all worker comp systems do, and replace them with professional, i.e. beholden, corporate agents) and you have taken away one of the last best chances for people to control what is done by business in the name of the bottom-line.

    Let's face it, if the medical systems were going to improve patient care and safety just because it is the right thing to do, we wouldn't have the crisis of poor care and outrageous outcomes we see, and there wouldn't be 100,000 plus deaths from hospital negligence every year in America (as conservatively estimated by the New England Journal of Medicine study several years ago). The last thing we should advocate is the removal of the incentives to provide optimal care provided by being answerable to a jury of ordinary patients.

  • OHSU is King (unverified)
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    Actually, Phen, this is about sovereign immunity, and not about the malpractice system. Both sides in this case agreed that malpractice had occurred, and the boy should be compensated. But because of the sovereign immunity, OHSU's responsibility was capped at $200,000 - for a child who's medical bills for a lifetime of care are estimated to exceed $10 million. (Yes, that sounds like a lot, but he was severely injured due to malpractice, and he now requires extreme medical attention.) Should his parents shoulder that financial burden -- for someone else's preventable mistake?

    In this case, the malpractice system worked -- until it smacked into the soverrign immunity cap, which screwed an already devastated family. So let's talk about why there should not be a sovereign immunity cap for OHSU, which receives only 4% of it's budget from the state, but wants to be treated the same as the Dept. of Human Services or other agency.

    BTW, Phen, feel free to expound on the beauty of the Workers' Comp system somewhere else. That's not the issue here (nor is that a progressive solution.) Lots of Republicans want to protect their corporate cronies' pocketbooks by replacing our civil justice system with a crappy WC system. It DOES take away due process and does NOT allow them access to a court for unsatisfactory administrative outcomes. Ask any injured worker if that system gets them compensated quickly and fairly. It doesn't.

    So go post those solutions on Oregon Catalyst, or some other red blog. And then tell me again how Ginny Burdick killed a bill in order to protect her client (OHSU) and not her constituents. Yeah, I'm starting to see where you're going with all this.

  • Garlynn (unverified)
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    Furthermore, it's another display of the arrogance and genuine lack of respect that OHSU has embodied over the years. When I say lack of respect, I mean lack of respect to its patients, to the citizens of Portland, to the general public. OHSU continues to operate as if its prmary mission was to promote OHSU as an institution, rather than to serve the public. Don't get me wrong, I'm glad that OHSU exists, and in general I think they're handy to have around... but when it comes to serving patients, they need reform, possibly revolutionary reform. Heads should roll at OHSU, and instead, they're receive pay increases.

  • marko (unverified)
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    How can it be ethical for Ginny Burdick to vote on a bill affecting OHSU, if she's paid by OHSU to lobby for them? Do they pay her while the legislature is in session?

  • Jim Holman (unverified)
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    OHSU is King writes: "So let's talk about why there should not be a sovereign immunity cap for OHSU, which receives only 4% of it's budget from the state, but wants to be treated the same as the Dept. of Human Services or other agency."

    The amount of money OHSU receives from the state is irrelevant. Even as a part of the department of Higher Ed, OHSU received a fairly small percent of revenue from the State. OHSU is different from a typical state agency in the following ways:

    1) governance. Rather than being under the control of Higher Ed, OHSU has it's own board of directors.

    2) regulation. The enabling legislation that brough OHSU into existence also set them free from the purchasing and contracting regulations under which State agencies have to operation. In place of those regulations OHSU has its internal policies and procedures.

    3) support services. In leaving Higher Ed, OHSU had to develop its own personnel policies, compensation system, payroll system, financial system, etc.

    The thing to remember about OHSU is that in the same way it was turned into a public corporation, it could be turned back into a State agency. At any point, OHSU is one legislative session away from being brought back into Higher Ed, or even broken up and sold off. In that sense OHSU is very much under the control of the State.

    I think what has happened is that the last few years OHSU has started to FEEL more like a big business. I worked there for 21 years, and certainly the last few years felt more "corporate," complete with great organizational interest in "contracting out" and with business consultants feeding regularly from the OHSU trough, and distant executives making decisions on things they knew little about.

    But this is probably what happens when you have an organization that has grown to the size of OHSU. It is a huge organization now, with a billion dollar annual spend, and over 10,000 employees. If it feels like a big business, that's probably because it is a big business, even with its continuing relationship to the State.

  • Phen (unverified)
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    Let me defend my positions a little bit.

    On the sovereign immunity issue, the cap on recovery becomes a non-issue if all providers pay into a common fund where benefits are determined by the circumstances and extent of the injury, rather than who the provider was.

    On whether workers comp reform was "progressive" or not, I think it was, in two major ways.

    1) Since Oregon's reform around 1990, the frequency of workplace injuries has declined precipitously. There are many reasons for this, but I would argue that the system is working a lot better now than it did previously from the standpoint that more people get to go home at the end of the workday, instead of winding up in the hospital.

    2) The system is now controlled effectively by the Management-Labor Advisory Committee which considers all changes to the system. The doctors and lawyers, who are the main beneficiaries of an inefficient system, are not allowed in the room. Trial lawyers especially hate reform because it deprives them of a lot of income.

    WC is analogous to med mal because we have four competing interests at play in both cases: injured parties, insurers, lawyers and medical providers. While it may sound all "progressive" to give injured parties the right to sue the pants off the providers, the end result is that the entire system is likely to collapse under the weight of excessive costs. A few "lucky" plaintiffs (those hurt badly enough) wind up with millions, and so do their lawyers. But some 90% of med mal plaintiffs wind up with nothing but extra aggravation and expense.

    I think the "progressive" approach is one that maximizes the speed of handling claims, minimizes the cost of operating the system, maximizes the percentage of benefits flowing to claimants and not lawyers, maximizes fairness of awards among all claimants, preserves sufficient appeal rights to redress unfair handling of certain claims, deals effectively with providers who screw up repeatedly, and is simple enough that everyone understands it. Oregon's workers comp system actually comes reasonably close to meeting these criteria, as do some other states. But certainly not all, e.g. California, Florida, New York and others.

    As for "revolving door bureaucrats who make sure every injured Oregonworker has to fight tooth and tong for every dime of compensation they were supposed to receive without a contest (quote from Bill)" that's just a ridiculous overstatement. Does Bill really think that Oregon carriers have handled a million claims over the past decade by denying them all? In fact, the vast majority of WC claims result in workers who return to work satisfied with their treatment by the system. A small minority find it necessary to hire lawyers to contest their treatment. Some of these are successful in achieving a better result. Some of the rest are just playing the system, trying to get paid for an injury that's phony or not really work-related. And yes, there are a few who may not get a good result after their day in court. But can any system guarantee a perfect result for everyone?

  • JJ Ark (unverified)
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    OK..Lemme just say that Ginny Burdick sucks rotten sulphuric eggs. I never thought I would see a politician worse than GW, but I have and it is GB. At least with Bush, you KNOW he is going to whack you in the head with a rock and then treat you like his own personal outhouse. Ginny won't even give us the benefit of the rock. Worse? After its over, she wants you to tell her you love her.

    Just sick. When can we vote for someone else in her seat?

  • kelley (unverified)
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    this is a very uneducated and biased bit of work, Cody. First of all, I have yet to see an academic center who has a record of absolute perfection when treating patients, and to place an attack on OHSU for negligence or 'sneakiness' is outright irresponsible and unresearched. Without being so shortsighted, before you begin pointing fingers in every direction to make a statement, you should examine FIRST the number of legitimate lawsuits brought against any academic center, examine the cap laws of several academic centers and how they evolve YEARLY, and step down off your peddle stool for a moment to reflect on the various angles and gross negligence of your own research.

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