The Mcare Act and Report Cards for Hospitals

One of the mysteries of the Mcare Act signed into law by Governor Mark Schweiker, March 20, 2002, is what it would do for patient safety. The organization has grown into a highly professional component of health care in Pennsylvania. Hospitals and covered medical entities are required to have Patient Safety Plans and to provide reports concerning “incidents” and “serious events.” The scope of the Patient Safety Authority is defined by Section 304, 40 P.S. § 1303.304. The responsibilities of the Patient Safety Authority pertain to collecting and analyzing data, transmitting recommendations for changes in health care practices and procedures, and directly advising medical facilities. The statute also requires cooperation between the Pennsylvania Patient Safety Authority and the Department of Health. The purpose of the Patient Safety Authority is to reduce preventable errors in Pennsylvania hospitals.

Almost 2 million reports later, a large number of Pennsylvania patients still believing that they are victims of medical errors in hospitals, the question persists concerning the scope of the work to be undertaken by the Authority. One of the least used portions of the Mcare Act is anonymous reports to the Authority and whistleblower protection.

Should part and parcel of the Authority’s job be to inform patients concerning patient safety? If the Patient Safety Authority is to maintain any continuing viability, the answer must be answered in the affirmative. In fact, the Patient Safety Authority does issue reports to the legislature which are publicly available, and it has a comprehensive website which should provide utility to any patient. There also have been a few pamphlets issued by the Patient Safety Authority available to the general public.

One of the issues which this author has raised, and is beginning to be addressed by the Patient Safety Authority, is the issue of how patients know which are the best hospitals? The question has been asked by some as to whether this is even important since choice of facility is driven by insurers and government agencies rather than by the patient. Even if a patient wanted to go to one hospital and avoid another, because the former institution has a high rate of infections, would that patient be able to make a free choice? It continues to be the view of many who have looked at the question that there is a component of patient safety which can and should be driven by patients themselves demanding that hospitals adhere to the proper standards.

Report carding has become a popular advertising gimmick among hospitals, but few patients have the slightest idea what the advertising really means. The number of advertisements on billboards, TV, and in the print media for hospitals claiming high safety records is greater in scope and dollars spent than even the most obnoxious lawyer ads.

Have you seen the ads for one hospital, claiming that it has received an A+ for patient safety? Other hospital ads in the media and on billboards advertise specific quality results, whether it be for cancer treatment, heart bypass surgery, women’s issues and prostate care.

“Patient safety” used to be a dirty word in the medical health care establishment. All that changed when the Institute of Medicine declared that the risk of unnecessary death in hospitals was one of the leading causes of death in the United States. The likelihood that a patient will die in the hospital from a preventable error is much higher than being killed in a plane crash or dying from one of the nation’s most serious diseases.

Patient safety has become to the health care field what airbags are to automobiles. The automobile industry fought the use of airbags tooth and nail, until in the late ’80s and early ’90s the federal government finally changed its mind and required airbags. Now, manufacturers of vehicles fall all over themselves to line the insides of vehicles with airbags. Why? Airbags work to prevent injuries and to drive down the costs associated with automobile collisions.

Patient safety, likewise, is good business and is good for patients. Hospitals have now picked up the gauntlet on patient safety and have begun to advertise themselves as leaders in the fight to keep patients safe and secure in the hospital environment.

The problem with hospital advertising is that there are no standards to let the consumer know whether the hospital is telling patients the truth. There are many different rating sources for hospitals, including but not limited to Consumer Reports, the Leap Frog Group, Health Grades, Best Hospitals U.S. World News and Report, Truven Health Analytics, and 100 Top Hospitals (formerly Thomson Reuters). All of these sources utilize differing standards, and some do not even measure patient experience. For example, only Consumer Reports and Health Grades review information from state health departments. Most, if not all, of the reporting sources look at Medicare, which involves an older population and is useful but is not necessarily reflective across the board.
As long ago as 2005, an article was published in the Journal of the American Medical Association “JAMA” concerning “The Unintended Consequences of Publicly Reporting Quality Information.” The two doctors who authored the report concluded that public quality information allows patients, referring physicians and health care purchasers to preferentially select high-quality physicians. Public report cards motivate physicians and hospitals to compete based upon quality. The problem with report carding, as it is sometimes referred to, is that hospitals and physicians may seek to avoid systemically ill or elderly patients in an attempt to improve their quality rankings.

There is no question that some uniformity and public requirement must exist in connection with patient safety reporting, or consumers will inevitably be misled by hospital advertising. The authors of the article on public reporting seem fully to appreciate that understandable, useful and honest reporting would drive consumers to better hospitals and would encourage the underachievers to enhance their standards. In one study, 92% of Americans said that reporting of serious medical errors should be required. Over 60% wanted this information released publicly. In spite of the public’s strong preference for the public reporting of medical errors, only 6% of the public identified medical errors as the top problem facing health and medicine.

After New York State began releasing the report card information, certain mortality rates in New York dropped from 3.52% in 1989 to 2.78% in 1992, a decrease of 41%. Other states where report card information is mandatory have shown similar results. Unfortunately, information has also developed showing that some hospitals will transfer sick or at-risk patients from their institutions to potential competitors.

More information is available on the web concerning nursing homes in Pennsylvania, and that certainly has enhanced both consumer choices and patient safety. The Centers for Medicare & Medicaid Services have been publishing information on nursing home quality for some time.

Public reporting of health care quality is an important step in improving openness and accountability among health professions according to the authors of the JAMA article. The public is enthusiastic about health care report cards. As the authors noted, if public report cards are to improve the quality of care, participation must be mandatory and quality measurement and reporting must be universally adopted. Otherwise, providers who receive low-quality scores face incentives to avoid reporting and the sickest patients will be shifted from rated to unrated providers.

Hanys’ Quality Institute published a report of report cards “Understanding Publicly Reported Hospital Quality Measures,” in October of 2013 which caused a stir. Hanys is the healthcare association of New York State and noted that many of the agencies which “report card” hospitals used unrecognized or unreliable data. The goals of informing consumers by report carding “are thwarted by multiple reports with conflicting information and dramatically different ratings.” Hanys recommends developing a set of guiding principles to which report cards should adhere. Some doctors believe that report cards are unnecessary because healthcare insurance dictate where people will receive their medical care. The payors, insurance companies and employers, will decide where patients go anyway. However, in a democratic society there must be a role for consumers in selecting their own healthcare needs.

The Pennsylvania Patient Safety Authority, of which I am an original board member, should have a role in encouraging uniform full reporting of incidents and serious events as well and making that information public to the extent permitted by legislation. Unfortunately, the definitions used by Pennsylvania hospitals to report serious events and incidents is confusing and not universally agreed upon. Therefore, while the Pennsylvania Patient Safety Authority receives hundreds of thousands of reports of incidents and serious events, there are some hospitals and nursing homes that do not report at all or are “low” reporters. Thus far, nothing substantial has been done to address that problem.

Consumers can only make decisions that improve patient safety to the extent they are given honest and complete information. As I like to tell my kids, “knowledge is power.” Whether a hospital is A+ or C – should not be a matter of advertising hucksterism, but rather should depend upon the facts on the ground. As the late Senator Daniel Patrick Moynihan once said, “Everyone is entitled to his own opinion, but not his own facts.”

The Patient Safety Authority does, in its Annual Report, show information concerning “serious events” and “incidents” by region since that is the language of the statute, but not by individual hospital. It is the view of some on the Patient Safety Authority that even if information with respect to reporting of hospitals was made available to the public, this might only mean that a particular institution was better at reporting than another and it may not relate to patient safety until and unless some benchmark indicators can be developed. This has been done for infections where acquiring infections in hospitals can be measured against patient days or hospital beds in a particular institution. More progress needs to be made to empower consumers, whether they be individuals or insurance companies, to “shop” at the best hospitals. If this is ever to occur, there must be some standardization in so-called “report carding” so that advertising hyperbole takes a back seat to accurate consumer information.

Rieders, Travis, Dohrmann, Mowrey, Humphrey & Waters

161 West Third Street
Williamsport, PA 17701
(570) 323-8711 (telephone)
(570) 323-4192 (facsimile)

Cliff Rieders, who practices law in Williamsport, is Past President of the Pennsylvania Trial Lawyers Association and a member of the Pennsylvania Patient Safety Authority. None of the opinions expressed necessarily represent the views of these organizations.

Attorney Cliff Rieders

Cliff Rieders is a Nationally Board Certified Trial Lawyer practicing personal injury law. A large part of his practice involves multi-district litigation, including cases related to pharmaceuticals, vitamin supplements and medical devices. He is admitted in several state and federal courts, as well as the Supreme Court of the United States. Rieders is the past regional president of the Federal Bar Association and is a life member of the distinguished American Law Institute, which promulgates proposed rules adopted by many state courts. He is a past president of the Pennsylvania Association for Justice, formerly Pennsylvania Trial Lawyers Association. As a founder of the Pennsylvania Patient Safety Authority, he served on the Board for 15 years.

Not only has Rieders held many highly esteemed, leadership positions, he authored legislation related to the Patient Safety Authority and the Mcare Act, which governs medical and hospital liability actions in Pennsylvania. He authored texts upon which both practitioners and judges rely, including Pennsylvania Malpractice Laws and Forms, and Financial Responsibility Law Issues in Pennsylvania, the latter governing auto and truck collisions in Pennsylvania. In addition, he wrote several books on the practice of law in Pennsylvania regarding wrongful death and survivor actions, insurance bad faith, legal malpractice claims and worker rights, among others. Rieders also serves as a resource to practitioners as a regular speaker for Celesq, an arm of the world’s largest legal publisher, Thomson Reuters West Publishing.

As recognition of his wide range of contribution to his profession and of his dedication to protecting the rights of his clients, he received numerous awards, among them the George F. Douglas Amicus Curiae Award, the Milton D. Rosenberg Award, the B’nai B’rith Justice Award, and awards of recognition from the Pennsylvania Trial Lawyers. [ Attorney Bio ]