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Founded
in 1887, Oregon Health Sciences University is one of the
two oldest medical schools west of
the Mississippi.
In 1977,
state taxes made up 42 percent of OHSU's budget; today,
taxpayers fund less than 9 percent.
In the
1997-99 biennium, OHSU received $107.9 million from the
state's general fund.
OHSU
raises $30-$40 million a year in private donations. Last
fiscal year, it also earned about $120 million in grants.
OHSU
is the city's largest corporate employer, with 9,400 workers.
This
year's total enrollment in OHSU's medical, dental, nursing
and allied-health schools is 1,846.
The
statute of limitations for negligence lawsuits is usually
two years; at OHSU (and all other public bodies) a notice
of intent to sue must be filed within 180 days of the injury.
In 1997,
OHSU's cancer center won
a $4 million grant from the National Cancer Institute and
was designated as a cancer research center, the only one
between Seattle and Los Angeles.
Other
public corporations in Oregon are Tri-Met, the Port of Portland
and the State Accident Insurance Fund.
Some
Portland police officers have written "Take me to Emanuel"
on their bulletproof vests
to indicate their preference for the trauma unit at the
Legacy hospital over the one at OHSU.
Lawsuit
immunity has already been challenged, unsuccessfully, in
a case against the Port of Portland. Robert Dames says his
OHSU challenge is different because the hospital is
competing with
the private sector.
"All
my friends at school, they whisper. I wish I could hear
them," 12-year-old Mira says. The sixth grader attends school
half-time because she's exhausted and because her "real-time
operator," who transcribes class notes, can only help her
in the mornings.
Many attorneys don't even want to look at anything involving
the medical school because the ultimate recovery means you're
losing money," says the Shahs' attorney, Robert Dames, who
can see OHSU from his downtown office.
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It's called the Hill, as in "up on the Hill," a reference
to its perch overlooking the city from the west. Indicating
more than location, the phrase implies stature--high and mighty,
righteous and dominant, a place up there in the clouds where
learning and healing come together.
The image isn't too far from reality. Last year, U.S.
News & World Report ranked six of Oregon Health
Sciences University's clinical specialties among the best
in the nation. OHSU also earned an A rating for its care
from the national Center for Healthcare Industry Performance
Studies.
In certain circles, however, OHSU is viewed much differently:
If you have to go to a hospital, you don't want to wind
up there.
This is not just because some patients leave the Hill in
worse shape than when they arrived. That's true of all hospitals.
National studies show that, on average, between one in 20
and one in 25 hospital patients has an "adverse event,"
a euphemism that covers everything from a bad reaction to
medication to death by malpractice.
The particular problem at OHSU, according to Mark Bocci,
a local medical-malpractice lawyer, "is that when they make
mistakes, they just aren't accountable for them."
Why? Oregon law gives OHSU--but no other hospital in the
metro area--substantial immunity from negligence lawsuits.
Twelve-year-old Mira Shah knows more about this immunity
than a sixth grader should. Last year, she went to OHSU
for a $10,000 operation on her intestine. She left the hospital
with substantial hearing loss, almost $1 million in bills
and what her parents view as inadequate recourse.
Mira and her family are determined to fight. With the help
of a lawyer, they hope to challenge the constitutionality
of OHSU's lawsuit shield. Their best argument? That the
state's only medical school, the place some still see as
a "charity hospital," is an entrepreneurial private corporation
in disguise.
If the Shahs win, they could buck years of legal history
and give administrators at the $650 million institution
the scare of their lives.
Somewhere during her long stay at OHSU, Mira lost much
of her hearing. Her mother, Nita Shah, says she also lost
a part of her mind.
The smart Northwest Portlander who used to be quick with
a witty comment now pauses before responding to even simple
requests. She just doesn't process things as quickly, her
mother says.
Sounds get mixed up, Mira says, like they do when you're
in between stations on the radio dial and you're hearing
bits and pieces from two songs at once. As a newcomer to
West Sylvan Middle School, Mira says the confusion is stressful--literally
migraine-inducing--especially because ambient sound is amplified
by her hearing aids. Mira also feels uncomfortable having
a "real-time operator" in class. Since she can't understand
the teacher, she needs somebody to type the teacher's words
into a laptop for her to read.
Mira's left leg is constantly burning, probably from an
operation in which surgeons opened up her leg from ankle
to knee to remove blood clots. The procedure left two dramatic
scars. She can't play the piano anymore because her left
hand doesn't seem to do what she wants it to.
"This is her first middle-school experience," Nita Shah
says. "What a setback. She's deaf, so she's embarrassed
and doesn't want anybody to know she has hearing aids. A
lot of her friendships are gone."
"All my friends at school, they whisper," Mira says from
the family's home in Forest Heights. "I wish I could hear
them." Sometimes, Mira thinks she'd rather be dead. "I'm
not happy the way I am," she explains.
Nita Shah, who used to run a bagel shop in downtown Portland,
and her husband, Mahendra, a financial analyst at PGE, blame
OHSU for their daughter's predicament.
The ordeal began last May, but it has to do with a problem
Mira has had all her life. She was born with a blocked intestine,
something that was immediately cleared with surgery. At
the time, doctors told the Shahs that Mira would probably
need additional surgery as the scar tissue grew and choked
off the slender organ from the inside. Sure enough, less
than a year later, Mira's intestinal blocking returned.
After relatively minor surgery and three days at Emanuel,
she was back home--in and out, nothing to it.
So when Mira began showing similar symptoms at age 11,
the Shahs weren't too worried. On May 14 last year, they
checked her into Doernbecher, OHSU's new $73 million children's
hospital, thinking she'd be back on her feet in days.
Days turned into weeks and months. Mira finally returned
home on Aug. 15, three months after she was admitted. (At
the family's request, Mira spent the last month of her hospital
stay at Emanuel.)
The intestinal surgery went smoothly. Mira's problems,
her mother says, had to do with a piece of plastic. Before
surgery, Mira was fitted with a tube called a central line,
which is inserted directly into a large vein near the heart
to carry nutrition and medication into the bloodstream.
The procedure should have been routine, but the outcome
wasn't.
The signs of infection began shortly after the tube was
inserted. First, Mira's temperature began to rise, reaching
dangerous levels throughout the course of her hospital stay.
And her stomach problems became worse. "I knew in my heart
something was wrong," Nita Shah recalls.
Mira's discharge summary reads like a season's worth of
ER episodes. Her kidneys shut down. She developed meningitis.
She was hooked up to a ventilator and had numerous surgeries.
She developed eye injuries, abscesses, tracheal laceration
and, according to the Shahs' attorney, permanent brain damage.
"Three times we had to sit down and make a decision whether
to let her go," Nita Shah says. "At one point, the head
of the vascular department said they were going to have
to amputate her leg because they were worried a blood clot
would break loose and go to her lung or brain. The pain
was so bad she was screaming, 'cut off my leg.'"
It seems clear that Mira's problems began with the spread
of an infection. "Mira clearly had a very rocky course from
an infectious disease standpoint," according to her discharge
summary. Whether this was due to bad care on the part of
the hospital and her surgeon, Marvin Harrison, is not so
clear. Officials at OHSU won't discuss the case.
WW contacted two doctors who had no part in Mira's
treatment. They say that although they do not know the details
of this particular case, problems with central lines are
not unusual. When the skin is broken and any tube is inserted
into the body, it's like an open gateway for infection.
A few pumps of the heart can spread an infection throughout
the whole body. When that happens, it sets off a string
of reactions that in some cases lead to death. Simply changing
the lines will often limit the infection's spread, making
it easier to fight. Usually, when a patient has a fever
and other complaints like Mira's initial symptoms, the first
step is to check all the lines.
Mira's medical records show that her central line was not
removed for a week. By then, the infection had set in.
For this, the Shahs blamed OHSU. Though most of their hospital
bills were covered by insurance, they wanted to pursue a
lawsuit against the hospital and its staff for negligence.
On the surface, it seemed as if they had a good case.
"I called attorneys from A to Z," Nita Shah says, including
Jan Baisch, Larry Sokol and Larry Wobbrock, some of the
city's most tenacious plaintiffs attorneys. "They said they
wouldn't take it."
All of them gave the same explanation: It doesn't pay to
go after OHSU--no matter how many mistakes its employees
might have made.
"What's the point?" Wobbrock asks, explaining that the
Shahs probably wouldn't get any money from the case even
if they won.
Would Wobbrock have taken the case had Mira been treated
somewhere else? "In a second," he replies.
OHSU can thank an ancient king for keeping lawyers like
Wobbrock at bay. Hundreds of years ago, this particular
king decided he could do no wrong, so he codified that with
a decree: No one could sue the government.
Seeing the obvious benefits, many U.S. government bodies,
including the State of Oregon, enacted similar constraints,
most taking the form of caps on legal damages. Today, the
idea is that public bodies must perform functions that private
companies might avoid for economic reasons. The laws are
also based on the notion that--for the good of all taxpaying
citizens--individuals' lawsuits against public bodies should
be limited.
Under Oregon law, the maximum recovery for pain and suffering
is limited to $100,000 per person, the same as it's been
for almost 25 years. This applies whether your car crashes
on a poorly signaled roadway, you're inadvertently hurt
by a police car on a chase or you become paralyzed by athletic
drills ordered by the high-school football coach.
Because OHSU is considered a quasi-government entity, the
hospital and its workers are also covered by the cap. It
is a partial immunity that no other hospital in the city
has, though there is one other Oregon hospital, in Coos
Bay, which is also government-run and therefore protected.
"Sovereign immunity" laws, as they're called, aren't unusual,
although Oregon's are some of the most restrictive. Indiana,
for example, limits damages to $300,000 per person, according
to the Association of Trial Lawyers of America. Some
states, such as Washington and Montana, don't cap damages
against the government at all, and others, like Colorado,
exempt public hospitals from the cap.
Bring up sovereign immunity with a lawyer and you're likely
to get an earful. "Why should the government, which is able
to insure itself just like anybody else, be immune from
doing harm to its own taxpayers?" Bocci wonders. "Every
other corporation is responsible for the conduct of their
employees except the government."
OHSU's protections make its doctors kings of the Hill.
Like the guy with the crown back in old England, they're
virtually untouchable.
"It's terrible because people go up there not realizing
that if something goes wrong, they're limited in their recovery,"
says Wobbrock.
Mark DeSylvia's family knows all about that. The 14-year-old
Portland boy went to OHSU in 1994 for a heart transplant.
Doctors had his chest opened up before they realized that
the donor heart was of the wrong blood type. This was the
second time they had made such a mistake in three years.
They stitched him back up, but he died a short time later.
"At the time we were perplexed at the lack of interest
or cooperation on the part of OHSU," Mark's aunt, Denise
Valenti, wrote in a plea to the Legislature in 1997. "We
incorrectly assumed that they would make every effort to
avoid legal action on our part. We were unaware that they
were essentially 'immune' from tort action."
Because Mark died from his injuries, his family was able
to sue for more than $100,000. But even in wrongful-death
suits, government damages were then limited to $250,000,
the amount for which the DeSylvia family settled with the
hospital. (The current limit on wrongful-death claims is
$300,000.)
In the mid-'80s, lawyer Richard Noble dramatically demonstrated
this problem with the law in a case against Umatilla Community
Hospital involving a baby who suffered brain damage shortly
after birth. Noble won a jury verdict of $5.7 million in
favor of the parents--then the largest medical-malpractice
verdict in Oregon history. But because the hospital was
government-funded at the time, under state law the judge
was forced to reduce the damages to $100,000.
"At [a state-funded hospital] a patient with a devastating
injury will get a limited recovery, whereas a patient that
had this happen at St. Vincent or Emanuel would get a reasonable
recovery," says lawyer Stephen Hendricks. "The exact same
injury won't receive the same compensation."
Oftentimes, lawyers decline to bring cases against OHSU
because there's simply no money in it--for the lawyer or
the victim. Medical-malpractice cases are very difficult
to win. Lawyers typically take the first 25 to 40 percent
of any recovery. Plaintiffs have to pay costs, including
expert-witness fees, that can run up to $50,000 or more.
Even if the plaintiffs win, their recovery is often subject
to liens by their insurance company or, if they were covered
by the Oregon Health Plan, by the government.
"When I'm asked to handle a case involving OHSU, I usually
turn them down," says Wobbrock. "The economics don't work
out."
Lawyer Robert Dames, who has focused on medical malpractice
for 15 years, has always felt the system was unfair. This
year, he decided to do something about it: He took Mira
Shah's case. Dames is not simply planning to sue for malpractice.
He wants to challenge the very legal foundations upon which
OHSU's protection rests.
In doing so, he's taking a closer look at an attribute
of which OHSU is quite proud--its ability to compete in
the real world. "Is it a public body or not?" Dames asks.
"Is it there to serve the public or it is out in the community
competing with other enterprises?"
When the Shahs took Mira to OHSU, they didn't know they
were walking into a strange breed of hospital. According
to a state law passed in 1995, it is the only hospital in
the nation that is at once public and private--hence Dames'
question.
For years OHSU had operated under the umbrella of the state
System of Higher Education. But by the early 1990s, the
institution saw trouble looming. Voters had passed Measure
5, which drastically cut education funding. Over a five-year
period ending in 1995, OHSU saw a total drop in funding
of $11.3 million, or 25.9 percent.
While OHSU was relying more on its patient base for funding,
the health-care market was changing. The penetration of
managed care put OHSU, the state's only teaching hospital,
at a disadvantage. With costs that were generally higher
than those at other facilities, it couldn't compete. Red
tape made life in the new fast-paced, low-margin world of
health care even more difficult.
In order to staunch the bleeding, OHSU asked the state
for a chance to compete in the real world. To accomplish
this, the university had to be freed from under the thumb
of government rule-makers. That would allow it to negotiate
with HMOs just as private hospitals do and plot its own
future unconstrained by the System of Higher Education.
In 1995, OHSU was crowned a "public corporation." The university's
first project, and a sign that it was deadly serious about
competing in the real world, was to begin raising money
for a new children's hospital. The effort put it in direct
competition with Emanuel, which at the time was also looking
to expand its children's hospital. Many thought that for
a city of Portland's size, only one such facility was needed.
OHSU thought otherwise and issued bonds and raised private
money to build its own facility, Doernbecher, which opened
in 1998.
Signs of OHSU's competitive spirit are everywhere: Satellite
clinics have sprouted all over the city; advertisements
for OHSU's services appear at bus stops; and the public-relations
department spits out press releases at a breakneck pace.
Some reports indicate that the university has even cut
back on its longstanding role as caretaker of Oregon's poor.
According to figures OHSU reported to the Health Plan Policy
and Research Office, the amount it spends on "charity care"
has decreased. In 1998, charity care comprised only 1.26
percent of the hospital's patient billings--less than its
biggest competitors, Emanuel and Providence. In conversations
with WW, however, OHSU disputed those figures by
pointing out that it still treats more Medicaid patients
than any other hospital in the region.
Though OHSU has become more entrepreneurial since 1995,
some things haven't changed. In fact, one of the eight critical
features of Senate Bill 2, which cut OHSU free, was maintaining
the university's lawsuit limits.
The appearance that OHSU has it both ways hasn't escaped
the notice of doctors at competing institutions. "I wish
we had their fund-raising capability. I wish we had some
of the legal protections they have," says John Santa, medical
director of Healthfirst Medical Group, almost wistfully.
"On the other hand, they have a mission that we don't, which
is teaching and research. To their credit they have done
a very good job of it, and they deserve some of the special
treatment that they get."
Lawyers are less charitable. "It's not a public body,"
says Dames. "It's a private corporation that calls itself
a public corporation. This is an outfit that's out there
competing tooth and nail with the rest of the medical providers
in this community."
Nita Shah feels similarly. "It's called a state hospital
when they're getting sued, and it's private when they want
donations," she says. "They don't charge any less."
The moaning on this subject by plaintiffs lawyers is nothing
new. The Oregon Trial Lawyers Association and other activist
groups have tried to change the sovereign-immunity law several
times. This session, OTLA is pushing a bill that would raise
the limit for government bodies, including OHSU, to $250,000.
Lobbyist Jack McIsaac, who normally works for timber companies
and other big-business clients, has taken on a crusade,
pro bono, to eliminate the lawsuit cap for OHSU physicians,
something he also pushed last session.
It's unlikely the 1999 Legislature will buy either idea.
Dames plans to attack the problem from another angle--through
the courts.
In his opinion, the $100,000 cap violates two provisions
of the state constitution. The first is equal protection--that
is, patients suffering malpractice at most hospitals can
recover full damages, but those at OHSU are out of luck.
The second is equal access to the courts. Lawyers routinely
turn down cases against OHSU, so many people wind up not
having their day in court. Even those who get a chance to
go before a judge have limited access to compensation.
Since OHSU became a "public corporation," Dames has been
looking for a vehicle to make his arguments. He thinks he
found it with Mira Shah.
"If this case was against Emanuel, you'd be very comfortable
asking the jury for a high seven-figure award, if not eight
figures," he says. "If ever there was a case that could
demonstrate the unfairness of the system, it's a case in
which you have $1 million in medical bills alone and a brain-damaged
little girl."
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Willamette Week | originally
published May 19, 1999
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