How A Bill Doesn't Become a Law

Charlie Burr

(Author’s Note/Disclosure: In 2004, I managed the coalition of senior, consumer and health organizations opposed to Constitutional Amendment 35. Also, the campaign website was powered by Mandate Media.)Goodbill2Ginny2_1

Two years ago, Oregon voters narrowly rejected a big money Constitution amendment to limit the jury rights of grievously injured medical malpractice victims. The attack on our civil justice system fell just 27,803 votes short, but in Senator Ginny Burdick’s district – and the City of Portland - votes against it were decisive.

In fact, Measure 35 went down 60 – 40 in Mult. county.

But what many are unaware of is that OHSU, despite receiving just over 3 percent of its $1.2 billion dollar budget from taxpayers, still claims “sovereign immunity” in malpractice cases – which limits the damages victims can recover to $200,000, no matter how severe the injury.

Right now there are several promising cases moving through the courts to challenge OHSU’s lack of meaningful accountability.

The transactional effect of the OHSU cap is to make it far more difficult for families to have their day in court. Further, it violates the equal protection clause of the Oregon Constitution by limiting the jury rights of OHSU patients that others around the state enjoy.

Last session, Senator Vicki Walker introduced a bill primarily aimed at SAIF that would have changed all of that by lifting “sovereign immunity” for state agencies, but it was never given a hearing in Senator Burdick's Judiciary committee. Walker recently had this to say:

"I finally figured out why: As soon as you start talking about sovereign immunity, it would have impacted OHSU," Walker said. Portland legislators especially were reluctant to take on the hospital, she said. (Oregonian, February 19, 2006)

In the article “Ethics Lost in Legal Song and Dance” (Oregonian, Nov. 8, 2005), Steve Duin notes the intersection of the Senator Ginny Burdick's private interests and public votes:

The Judiciary chairman is Sen. Ginny Burdick, D-Portland. When the Legislature is not in session, Burdick is senior counsel at Gard & Gerber, whose clients have included OHSU and former Gov. Neil Goldschmidt, who was paid $40,000 per month to run interference for Saif until those payouts became public.

"We're supposed to have outside lives, and with outside lives come conflict, for pretty much all of us," said Burdick, adding she has no recollection of the bill or that conversation with Walker.

May memory better serve the unfortunate patient who still thinks Kaiser and OHSU are telling him everything he needs to know.

Ginny Burdick, Gard and Gerber "crisis communications expert."

Comments

  • NWW (unverified)
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    Ewww.... here it comes...

  • randy2 (unverified)
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    Amazing that Burdick was "unaware" of the issue. Either she's a slacker in her day job or clueless in her elected position.

    Keeping soverign immunity the law of the land seems entirely consistent with the push for protection from accountability whether it is war under false pretenses or protection of OHSU.

    Isn't one of the right's big arguments the fact that public providers are less efficient and effective than market-driven private interests?

    I think the whole concept of soverign immunity immunizes politicians (and the public who elects them) from ultimate accountability.

    R

  • Michael the Lib (unverified)
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    If Burdick read the damn newspaper she would have found that anywhere from 44,000 to 100,000 patients die from medical errors nationwide annually and that about 1% of those patents are in Oregon and some of them are in OHSU. But that requires paying attention. M.

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    Sorry, this should have been in the original post, but hat tip to Cody Hoesly, who originally posted here on sovereign immunity.

  • Jesse O (unverified)
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    Charlie, what do you have against Ginny? Lots -- in fact, most -- bills die due to lack of a hearing. Walker's a freak show, and an anti-SAIF bill has very little chance of making it through the legislature, so Ginny's non-holding of a hearing might constitute a good use of legislative resources, rather than a vast conspiracy.

    Instead, you try to tie many tenuous things together. Are you being paid to do a smear campaign by Erik Sten, or WTF?

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    Actually, Jesse O, this was a big story on the news about a week ago. So Charlie's just covering something that's been in the news lately, and that I'm sure people are talking about.

    There's a kid who is looking at millions and millions to pay for care the rest of his life because of a medical error at OHSU. However, the most he can get from OHSU is $200,000. Is that fair?

    That $200,000 is the total maximum that a patient or a patient's family can receive. We're not just talking about pain and suffering, but also the cost of care the person now has because of the medical mistake.

    It is completely wrong for a hospital to not have to at a minimum pay for the expected costs of care that are needed because of their error.

  • Phen (unverified)
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    I'm not sure the problem here is being diagnosed correctly. If the patient is seen as "the people of Oregon", the prescription being offered -- removing the sovereign immunity of OHSU -- may wind up making the patient very sick. If that were to happen, who would be accountable for the unintended consequences? Happens all the time in public policy when (perhaps) well-intended "solutions" produce dire effects.

    I would say the real problem is the lack of an efficient system for compensating victims of medical errors. A system that doesn't promote defensive medicine and contribute further to spiraling health care costs. A system that doesn't threaten physicians in high-risk fields -- especially obstetrics -- with bankruptcy every time they perform a procedure. In other words, a "no fault" system where all providers pay into a victim compensation fund.

    Of course providers should be accountable! But providing accountability essentially through a lottery (the tort system) where some plaintiffs get jillions, but 90% get screwed, doesn't make sense to me. I think accountability is better handled through a disciplinary process managed largely but not totally by professional peers, and where the remedy for a mistake is more likely to be training or mentoring than bankruptcy.

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    Phen, in the case of Jordaan Clarke, the hospital bills alone are going to be at least $11 million and everyone involved in the case agrees that this tragedy was caused by medical error. Each case is different, and having a jury review the individual facts of a case is the most appropriate way to determine compensation.

    Really the best thing health providers can do is improve their efforts to police themselves. According to the National Practictioners Databank, less than 5% of doctors are responsible for 54% of all payouts. Instead of limiting patients jury rights, we should more to crackdown on dangerous, incompetent doctors.

    Jesse O - I've got nothing against Senator Burdick personally and would have disclosed it if I was working for Erik Sten. I did disclose that I worked against Measure 35 - and it's not a "smear" to say that she killed this bill. She did kill the bill.

    The best example of a "smear" this primary is Gard & Gerber accusing the League of Women Voters and VOE supporters of 'sabotage' without having any basis for the charge of vast criminal conspiracy.

  • verasoie (unverified)
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    Phen,

    Thank you for bringing up the key elements in this debate, i.e. that it is the system that is at fault for allowing "jackpot" lawsuits while most people get screwed... where's the justice in that?

    Honestly, as I see it though, people are still missing the crucial fact here that OHSU does serve a vital public interest, it cares for lots of poor Oregonians who can not pay for their care and otherwise would not get care elsewhere. If I recall correctly, 40% of the patients at OHSU are indigent and can not pay for the cost of their care, whereas elsewhere, at the private hospitals in Portland, that is 10% or lower. For OHSU to survive given these losses, it has to have deals with the state to cover its losses (which include liability) or else it would go belly-up in a month, and then where would that leave all the people who have nowhere else to turn? Out in the cold and sick, as the private hospitals are not caring for their share.

    I see it as the height of hypocrisy to criticize OHSU for having a special status vis-a-vis the state and state support, and then to demand that it provides services that are not reimbursed.

    I know, this case is tragic, but bankrupting the only hospital in town that provides services to the poor is not the solution... don't throw the baby out with the bath water.

    Full disclsure: I'm a medical student at OHSU and am highly dedicated to its mission to provide healthcare to the poor.

  • Phen (unverified)
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    Charlie, you are welcome to think "having a jury review the individual facts of a case is the most appropriate way to determine compensation" but I hope you realize that's just your opinion, not a statement of Truth. I can agree with you in tort cases where there's a transgression by one party against another. Yes, there was a "medical error." My point is that the victim's compensation should not depend upon how deep the pockets of the erring party are. Better that all victims have a fair chance at prompt compensation through an adjudication system, rather than having to: a. go through the mental anguish and uncertainty of a trial b. wait a really long time for the issue to be resolved c. take a chance on getting zilch in the end

    I know all trial lawyers are very nice people who fulfill a vital function in our democracy, but we don't have to involve them quite so intensively and lucratively in this particular field.

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    Verasoie wrote: ".... it is the system that is at fault for allowing "jackpot" lawsuits"

    From the Oregonian story:

    Jordaan Michael Clarke is nearly 8 years old, but he doesn't know it. He spends his days lying motionless on the sofa in his grandparents' home in Longview, Wash. Sometimes he smiles. Sometimes he cries. He's not aware of that, either. He's worn the same gym shoes for a year without a single scuff because they've never touched the floor. When Jordaan was 3 months old in May 1998, he underwent a successful open-heart surgery at Oregon Health & Science University. But as he recovered in intensive care, his breathing tube became dislodged. OHSU staff failed to correct the problem for 14 minutes, the hospital later admitted, leaving Jordaan with permanent and profound brain damage. Today, Jordaan exists in a condition numb to the world -- blind, quadriplegic and fed through a tube. He will require round-the-clock care for life at an estimated cost of $11 million.

    It doesn't sound like Jordaan "hit the jackpot" or won the lottery to me. It sounds like he's going to have a lifetime of pain and suffering because of medical error, and that his family will go bankrupt as a result. Again, his bills will be $11 million; his compensation is capped at 200K.

    The language you're using - "jackpot justice" - was developed by Frank Luntz ("Contract with America" pollster) for the US Chamber of Commerce, btw.

  • verasoie (unverified)
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    Uhh, Charlie, I'm not quite sure what point you were trying to make, but you did seem to miss mine entirely, or just didn't care to address it.

    I acknowledged that the case that everyone is talking about is tragic and didn't say anywhere that that poor kid should not get all the healthcare that he needs (in fact I stated clearly that I support publicly-funded healthcare for the poor and am devoting my career towards that). I also said that people need to take responsibility for the fact that they want OHSU to care for poor peole but they don't want OHSU to enjoy financial mechanisms that amke that possible.

    Make up your mind, or better yet, fork out some cash to pay for the kid's healthcare, because if you want a public hospital to pay for healthcare for the poor, you'd better recognize that that means that you are paying for it out of your taxes--- if you aren't wiling to do that, then you have no right to criticize.

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    Phen, yes it is my opinion, but it's also the opinion of the majority of voters, who twice in the past four election cycles have rejected ballot measures amending our state's Constitution to limit Oregonians' jury rights.

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    Verasoie, you wrote: I know, this case is tragic, but bankrupting the only hospital in town that provides services to the poor is not the solution... don't throw the baby out with the bath water.

    There may be legitimate compensation issues with your hospital's ability to care for the poor, but refusing to take responsibility and hiding behind "sovereign immunity" is not justice. I strongly believe that the Clarkes deserve their day in court and to have a jury determine their medical needs and compensation.

    The hospital is not the one who's in danger of bankruptcy here - it's the victim and his family.

  • verasoie (unverified)
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    Charlie,

    I think we agree that this child, and in fact all children (and adults too, I would argue), deserves adequate healthcare. That's not debatable.

    The question is, who is refusing to take responsibility for his healthcare? You say it is OHSU. I believe that is crap. I say that it is the rest of us who refuse to take responsibility. OHSU is a public hospital that cares for poor patients because we mandate it to do so and because we give it money to do so. But we don't give it enough money to achieve this, which is why it has resorted to schemes like this to get by. I'm not saying that their scheming is just, but the solution is not to sue them, that will only resolve this one case (at best)--- the real solution is to provide them with adequate funding to fulfill the mandate that we demand of them.

    We as a society have shirked our responsibility in adequately funding this public institution to serve its mission, and this is the consequence of that action.

    One solution would be universal healthcare, like single-payer, in which the costs of this case would be covered by the risk pool of the nation at-large. But is that being discussed? No, instead we are debating the merits of a sensationalized case instead of addrssing the root cause and solution of the problem (which I contend is because so many of the parties on the left and right (trial lawyers, insurance companies and, sadly, many physicians) have vested interests in maintaining it that way).

    This case is a distraction that will only result in the perpetuation or aggravation of this problem, and this post is discouraging and disturbing to find on a "progressive" blog.

  • grrlszgrrl (unverified)
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    Hurray for a voice of reason in Jesse O. Charlie, you are hell-bent on misleading folks into believeing that Ginny Burdick is Gard & Gerber. Gard & Gerber got the 40K not Burdick. While I think you try to educate the public about the Med-Mal caps at OHSU and other state entities, you use this as a mechanism for smearing Burdick and you aren't being completely forthright about the situation. If you don't agree with Burdick's stand on the issues, then talk about that. Or is that the problem? Afraid she might be more right on than your golden boy on issues so you have to slam her any other way possible?

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    Grrlszgrrl: As you can read from the post, there are people on both sides of the "sovereign immunity" debate. But what I wrote about here - and what was missing from the otherwise excellent Oregonian piece - is that it was Senator Ginny Burdick who refused to even give this bill a hearing.

    Verasoie: I agree with you that there are much more pressing health care issues than the effort to limit patients jury rights. Reform of the insurance markets is a meaningful place to start. Simple disclosure about a provider's record could give patients and consumers important information before undergoing surgery.

    But I strongly disagree with you that because taxpayers haven't given OHSU enough money, they are justified in this sovereign immunity "scheme" (your word). I agree with you about universal coverage; I don't however want to see OHSU take out the faults of our health care system on the backs of terribly injured malpractice victims. Also, when it comes to earning taxpayers trust - and I certainly appreciate OHSU's role in caring for the poor - the first thing that average taxpayers are going to respond is "aerial tram."

  • bluelurker (unverified)
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    "Hurray for a voice of reason in Jesse O."

    Jesse O, who doesn't want to "smear" burdick (aka holding her accountable) but who thinks nothing about casually calling Senator Vicki Walker, who has taken many couragous stands, a "freak show." Yeah, hurray.

  • jj ark (unverified)
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    [editor: off topic comments about gun control deleted]

    Yet she killed the one bill that would have allowed accountability in the medical profession for mistakes.

    Hmmmm...I wonder.

    There can only be two explanations:

    1. she is pandering to her constituency, and has zero compunction regarding spending the taxpayers money for votes (Most of those bills wouldn't pass constitutional muster, and would ahve failed after years of costly litigation).

    2. she is pandering to her employer's interest.

    perhaps its both?????????

    Just some food for thought. Flame away!

  • jj ark (unverified)
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    Hmmm…

    Lets just put this this way, since certain topics have been deemed off-limits:

    Ginny fielded 8 bills intended to mitigate the deaths of 29500 number of Americans (source: CDC). Each of these bills were steered through committee and each of these bills got hearings, some even here in Portland. She went out of her way to make sure that all of these were given full and due course. Each of them failed to make it out of committee, but at least they were given hearings.

    Sadly, a bill that would have HELPED folks who are killed or injured by the medical establishment…78400 in 2004, wasn’t even given a hearing.

    Note to editor: my point was NOT to point out her position on a particular issue, but rather to compare apples to apples and demonstrate a clear bias toward her clients and pet projects as opposed to the good to society as a whole(including her constituent base.) Death is death and we have to have a benchmark. No where else will we find that benchmark. 8 bills for one issue that may effect 29500 number of people got hearings, and 1 bill that could effect 78400 number of people wasn’t.

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