In June, the Pennsylvania legislature passed Act 1 of 2009, known as the Preventable Serious Adverse Events Act.  While Pennsylvania has passed some less effective patient safety legislation in the past, now healthcare providers will have a new incentive to prevent medical mistakes - - a financial one.

Here is how it has worked for decades:  A patient would go into the hospital for a simple one hour outpatient procedure.  As a result of a preventable mistake, the patient would be admitted for a two week stay which would include many tests, specialists and other services.  Even though the entire two week stay and services were the result of the hospital’s committing a preventable error, the hospital and physicians would still bill the patient, their insurer or Medicare.  In effect, the hospital would now be making more money because it committed a preventable mistake.  Consequently, while most hospitals and physicians implemented diluted patient safety programs, there was no financial incentive to cure this disease.   

Following in the footsteps of recent Medicare regulations, Act 1 addresses the payment policy in the event that a serious and preventable error is made by a health care provider.  Specifically, the new law states that if a medical error results in a patient’s death, loss of body part, disfigurement, disability or long-lasting loss of bodily function, the health care provider will not be allowed to seek payment from the patient or from the patient’s insurance company.  Act 1 also prevents health care professionals and facilities from seeking payment for services that treat or correct the results of the preventable error.  At last, a financial cure.

As an attorney who specializes in patient advocacy, I applaud this legislation and the steps towards promoting greater patient safety.  Health care providers that are responsible for such extreme errors should not be entitled to payment, and their victims cannot be expected to pay.  One provision, however, is concerning.

When a healthcare professional or facility commits a serious error, they are required to detail the incident in a secret report to the Commonwealth.  Under this new law and some existing laws, this report is kept confidential.  As a result, no one – including the injured victim, other patients, and potential future patients – have access to this crucial information. 

As a consumer, I believe it is important to have available information pertaining to a healthcare professional’s and facility’s record of serious and preventable errors when considering that facility for treatment.  Further, as a patient advocate, I find it troubling that a patient who has endured the catastrophic result of such an error should not have access to the facility’s explanation.  Apparently, the only stakeholder that gets a real benefit is the insurance company that is relieved of paying the claim. 

In no other area of the law is the victim shut off from such important information.  When two parties are involved in an accident, and one is clearly to blame, there is a police report filed and all parties – including both insurance providers – have access to it.  It would be unfathomable for the innocent driver to be forbidden from seeing the other driver’s blood alcohol content, if it was over the limit, or from knowing that the driver that caused the accident was texting and lost control of the car.  Why, then, when a physician or hospital cause a serious and preventable injury, should they be exempt from explaining themselves to the victim?

Under this legislation, although there is a financial penalty, health care providers that make serious and preventable mistakes are being protected.  Where is the protection for the victim?  It seems to me that the patient has a right to know why their way of life has been completely devastated, and they should have the right to hear it directly from the physician or hospital that knows that they caused it.