More on Medical Malpractice

Most malpractice suits are not frivolous. Take a close look at a large sample of claims and you’ll discover that the patient died or suffered a significant disability roughly 80 percent of the time. But when researchers at Harvard’s School of Public Health scrutinized cases involving some 33,000 physicians, 61 acute care hospitals and 428 outpatient facilities nationwide, they discovered that only sixty-three percent of the injuries were caused by medical error or negligence.

In other words, 37 percent of the claims were unfounded. But most plaintiffs had no way of knowing that there was no basis for the suit because once they began to ask questions, both doctors and the hospital clammed up. Traditionally hospital lawyers have told medical personnel that if the patient or his relatives are unhappy with the outcome, don’t say anything. Keep in mind, “anything you say could be used against you in court.”

As a result, the Harvard researchers explained, “our findings underscore how difficult it may be for plaintiffs and their attorneys to discern what has happened before the initiation of a claim and the acquisition of knowledge that comes from the investigations, consultation with experts, and sharing of information that litigation triggers.”

In other words, the only way to find out that you have no reason to sue is by suing—and triggering the costly and time-consuming process of legal “discovery” that will give you access to all of the facts.

As I explained in part 1 of this post, The New York Times recently reported   that a few hospitals are now experimenting with candor: rather than denying, they are revealing what happened, and apologizing. But this violates the received wisdom that a doctor who says “I’m sorry” to a patient will soon find himself saying “I’m sorry” to a jury. And, as some physicians who have been dragged through the process warn, that doctor will never have a chance to explain that while he wishes every day that things had gone differently, the situation was a little more complicated that the plaintiff’s attorney would have you believe...

An article published in Health Affairs just last year warns: “as pressure mounts on physicians and hospitals to disclose adverse outcomes…and medical injuries” they should be aware that the volume of claims would rise and providers should be ready for “the financial consequences.”

This is one reason why U.S. hospitals have long fostered what one survey of hospital executives describes as a “culture of secrecy.”   

It’s not only the fear of malpractice that inspires silence.  Loyalty to fellow doctors makes many physicians reluctant to report sloppy colleagues. After all, everyone makes mistakes. You don’t want to ruin someone’s career. Meanwhile, hospital executives do not like to ruffle the plumage of “rain-makers”—those surgeons who keep an institution’s operating rooms full. Unfortunately, sometimes these stars are subjecting patients to risky procedures without proven benefits. Others may be overseeing too many surgeries simultaneously, cutting corners in a variety of ways –while hospital administrators look the other way.

Misplaced loyalties that put the interests of  colleagues and institutions ahead of the welfare of patients may help explain why doctors who lose or settle malpractice suits are rarely disciplined by their state medical board—or by their hospital.   From 1990 to 2002, according to the National Practitioners’ Databank,  "only 10.7 percent (1,401 of 13,182) of all doctors who made three or more malpractice payouts  were disciplined, while only  16.9 percent (488 of 2,896) of those doctors who made five or more malpractice payouts were disciplined."

These numbers are stunning: they suggest that the vast majority of doctors who either are found guilty or wind up settling one lawsuit after another go right on practicing medicine, without so much as a slap on the wrist.

Of course, not every physician who loses or settles five cases in a dozen years is a bad doctor. Often, insurers insist on a settlement. And even if someone loses a malpractice suit—and indeed has made an error—this does not mean that he or she is incompetent or negligent. A momentary lapse in concentration, one bad judgment call, a missed diagnosis because the doctors initial assumption was wrong—these things happen to the most conscientious physicians.

But, given how rarely patients bring claims (only about 2 percent of those who are the victims of negligence sue), it is difficult to believe that 83 percent of these physicians who lose or settle multiple malpractice suits  are, in fact, practicing safe, patient-centered medicine. It seems perfectly plausible that some of them are—particularly in specialties like Ob/Gyn or Neurology. But 83 percent?

It’s also worth noting that physicians who are sued tend to be doctors that the patient never liked in the first place. “Cold,” “arrogant,” and “impatient” are words patients use when talking about doctors they take to court. At the very least, doctors who are sued frequently may need some collegial intervention, support and counseling. 

Courts are Not Stacked Against Physicians

Not only are doctors rarely disciplined, even when found guilty of malpractice, their chances of winning the cases are greater than a patient’s. According to the conventional wisdom, emotional juries tend to side with patients over doctors. But the same very large study by Harvard’s School of Public Health reveals that outcomes are fairer than the received wisdom suggests. When researchers who are themselves doctors reviewed the cases they found that when the bad outcome was, indeed, due to negligence or medical error, patients received a payment only 73 percent of the time.  Meanwhile, in cases where they saw no evidence of medical error, a payment was made only 10 percent of the time. This makes it all the harder to believe that in the vast majority of cases where the insurer made payments the doctors were blameless.

But wait a minute—how did the researchers determine that doctors had, in fact, erred? In the Harvard study reviews were conducted by board-certified physicians, fellows, or final-year residents in surgery (for surgery claims), obstetrics (for obstetrics claims), and internal medicine (for diagnosis and medication claims). Reviews lasted 1.6 hours per file on average and were conducted by one reviewer. To test the reliability of the process, 10 percent of the files were reviewed again by a second reviewer who was unaware of the first review. All reviewers recorded their judgments using a 6-point confidence scale in which a score of 1 indicated little or no evidence that an adverse outcome resulted from one or more errors and a score of 6 indicated virtually certain evidence that an adverse outcome resulted from one or more errors. A score of 4 or more was taken as a sign of error.

Finally, while some who oppose personal injury lawsuits claim that courts are tilted to favor patients, the truth is that in 16 percent of the cases where the reviewers saw error, patients received no compensation.  In sum, when you look at overall outcomes, the system works fairly well, the researchers from Harvard’s School of Public Health concluded: “legitimate claims are being paid, non-legitimate claims are generally not being paid,” and “portraits of a malpractice system that is stricken with frivolous litigation are overblown.”

The Argument for Litigation: It Improves Patient Safety

A 2006 article in the NEJM subtitled “Improving the Quality of Care through Litigation against Hospitals” goes a step further, arguing that the threat of malpractice suits performs a useful function in our health care system. George Annas, who is both an attorney and a public health expert, suggests that hospitals just won’t care enough about the safety issue unless they are sued: “[M]ore liability suits against hospitals may be necessary to motivate hospital boards to take patient safety more seriously.”

Up to a point, he is right: hospitals do not invest enough in patient safety. Too many hospitals pour millions into hotel-like amenities that will bring in wealthy, well-insured patients while investing too little in reducing infections, improving systems and moving to electronic medical records.

Annas then makes an intriguing argument: if we are truly interested in patient safety, he says, we should be suing hospitals, not doctors. “…physicians do not control all possible risks of injury in the hospital setting. Therefore, it is more appropriate to focus on the hospital and to define the scope of the right to safety as a reflection of corporate responsibility…

“Hospitals are responsible for their own negligence under the doctrine of corporate responsibility, which courts have applied directly to hospitals,’ Annas explains. “Although the law usually permits industries and professions to set their own practice standards, courts have also ruled that entire industries and professions can be negligent by failing to adopt new technologies, especially those that are inexpensive and effective.”

He quotes a 1991 ruling from the Pennsylvania Supreme Court:  “ ‘Corporate negligence is a doctrine under which the hospital is liable if it fails to uphold the proper standard of care owed the patient, which is to ensure the patient's safety and well-being while at the hospital.’ The court also listed four specific examples that previous courts had identified as hospital safety obligations. Annas reports: ‘the maintenance of safe and adequate facilities and equipment, the selection and retention of competent physicians, the oversight of medical practice within the hospital, and the adoption and enforcement of adequate rules and policies to ensure the quality of care for patients.”

This suggests that hospitals have a legal obligation to weed out doctors who are in any way endangering patients. Of course, if the doctor is not on staff, institutions have limited control, but they can revoke privileges to practice at the hospital—even if this means losing a certain amount of business.

Physicians Must Police Themselves

But, Annas concludes, while “the right to safety will have to be implemented by hospital systems . . . physicians will be central to its success.” As a model, he points to  the patient-safety programs that anesthesiologists launched some 25 years ago, responding to liability suits and high rates of medical-malpractice insurance.  As a result, “the risk of death from anesthesia dropped from 1 in 5,000 to about 1 in 250,000.”

Anesthesiologists set new standards for safety, and began policing themselves—all in response to lawsuits. Other specialties need to do the same. Panels of specialists who do not compete with or collaborate with a physician should be investigating cases where colleagues report that they are alarmed by the way that doctor is practicing medicine. We also need better laws to shield doctors and nurses who report a negligent doctor from being sued by the doctor in question. Finally, specialty groups should be investigating the systems used at hospitals where read-missions and errors are rare.

One can only hope that both specialty groups and hospitals will move to put their own houses in order without waiting for more malpractice suits. After all, while lawsuits may put needed pressure on hospital boards, one-third of physicians sued in the Harvard study were not responsible for the patient’s injury. One needs to recognize the harm done to them as they were dragged through court.  At the same time, two-thirds of the patients were the victims of medical negligence—and in the vast majority of cases, their injuries ranged from “significant disability” to an early death.

We Need a Better Way

In the end, the researchers at Harvard’s school of Public Health make it clear that the idea of “improving the quality of care through litigation” is, at best, an extremely expensive route to rough justice and at worst, a solution that leads to such bitterness on both sides that it can only undermine trust between doctors and patients:

“Any enthusiasm about the [justice] of the malpractice system [in the majority of cases] must be tempered by recognition of its costs. Among the claims we examined, the average time between injury and resolution was five years, and one in three claims took six years or more to resolve. These are long periods for plaintiffs to await decisions about compensation and for defendants to endure the uncertainty, acrimony, and time away from patient care that litigation entails.

“In monetary terms, the system's overhead costs are exorbitant,” the researchers continue. Add up the costs of defending the doctor plus the standard contingency fees charged by plaintiffs' attorneys and you find that the total cost of litigating the claims in the Harvard sample equals 54 percent of the compensation paid to plaintiffs. “The fact that nearly 80 percent of these administrative expenses were absorbed in the resolution of claims that involved harmful errors suggests that moves to combat frivolous litigation will have a limited effect on total costs.” The fact is that most suits are not frivolous.
Thus, they conclude, “Substantial savings depend on reforms that improve the system's efficiency in the handling of reasonable claims for compensation.” 

Letting the Sunlight In

Here I would return to the idea that instead of denying and defending, both hospitals and doctors should try telling the truth. Even if the physician does not believe that he erred, both he and his hospital should be willing to open the patient’s records for the patient and his or her attorney, revealing as much as possible about exactly what happened.  Nurses and other medical personnel should be allowed to tell the patient and his family what they saw.

But won’t this lead unscrupulous attorneys to then pounce on ambiguous details that they use to trump up a case?

That isn’t what has happened so far, according to the story in last week’s New York Times, which described how a number “of prominent academic medical centers, like Johns Hopkins and Stanford,” are trying [the] disarming approach. By promptly disclosing medical errors and offering earnest apologies and fair compensation, they hope to restore integrity to dealings with patients, make it easier to learn from mistakes and dilute anger that often fuels lawsuits.”

Not surprisingly, patients want to sue when they feel that someone is looking them straight in the eye—and lying to them. Often, an open admission of what went wrong combined with a sincere apology and a fair offer of compensation will defuse the situation. 

Victims often feel a responsibility to make sure that what happened to them won’t happen to others. When doctors admit errors, hospitals are in a much better position to analyze their systems, and devise ways to guard against similar mistakes. Telling the patient what they are planning to do also will temper the desire to sue.

“Despite some projections that disclosure would prompt a flood of lawsuits,” the Times notes,  hospitals that have the courage to  try this approach  “are reporting decreases in their caseloads and savings in legal costs. Malpractice premiums have declined in some instances, though market forces may be partly responsible.”

But won’t attorneys use apologies to hang defendants?   No—not if state law makes that impossible.
Thirty-four states already have enacted laws making apologies for medical errors inadmissible in court, according to Doug Wojcieszak, founder of The Sorry Works! Coalition, a group that advocates for disclosure. Four states have gone further and protected admissions of culpability. This all suggests that candor may be the wave of the future.

So far, the results have astounded the pessimists: “At the University of Michigan Health System, one of the first to experiment with full disclosure, existing claims and lawsuits dropped to 83 in August 2007 from 262 in August 2001,” according to Richard C. Boothman, the medical center’s chief risk officer .
“Improving patient safety and patient communication is more likely to cure the malpractice crisis than defensiveness and denial,” Boothman observed.

He also emphasized that he could not know whether the decline was due to disclosure or safer medicine, or both.”  Once a hospital begins to open the blinds and let the sunlight in, doctors, nurses and administrators are much more likely to be candid with each about “near misses.” Rather than “covering” for colleagues, they may begin “watching each other backs,” cautioning a tired colleague who is about to make a mistake.

Of course, some physicians will resist counsel and will refuse to acknowledge that they ever make mistakes—either because they fear a loss of position or privileges, or simply out of ego. Annas reports that even in New Zealand, a country that has “no-fault” malpractice insurance, about 61 percent of doctors still fail to report errors to their patients.

But, today, hospitals have a powerful incentive to insist on candor. At the University of Michigan, legal defense costs and the money it must set aside to pay claims have each been cut by two-thirds. The time taken to dispose of cases has been halved.

Meanwhile, the Times reports, “plaintiffs’ lawyers who recognize that injured clients benefit when they are compensated quickly—even if for less—are changing their strategies. In Michigan, trial lawyers have come to understand that Mr. Boothman will offer prompt and fair compensation for real negligence but will give no quarter in defending doctors when the hospital believes that the care was appropriate.”

“The filing of a lawsuit at the University of Michigan is now the last option, whereas with other hospitals it tends to be the first and only option,” Norman D. Tucker, a trial lawyer in Southfield, Michigan, told the Times.

Michigan is not the only success story. The number of malpractice filings against the University of Illinois has dropped by half since it started its program just over two years ago.  In the 37 cases where the hospital acknowledged a preventable error and apologized, only one patient has filed suit.

The results also show that it’s easier for doctors and hospitals to collaborate in practicing the best medicine possible when they are on the same team. “The policies seem to work best at hospitals that are self-insured and that employ most or all of their staffs, limiting the number of parties at the table.” 

This is the case at Veterans Health Administration, which, it turns out, pioneered the practice of full disclosure in the late 1980s at its hospital in Lexington, Ky., and now requires the revelation of all adverse events, even those that are not obvious.

Once again, as I’ve discussed on The HealthCare Blog, here and here, the VA stands out a leader,  moving us toward a health care system that is based on medical evidence and mutual trust and respect not only between patient and  doctor, but between hospital and doctor. For too long, doctors and hospitals have  seen each other as, at best, people who share the same parking lot, and at worst, as rivals. Going forward, both many reformers as well as many young doctors believe that more and more physicians will choose to practice at multi-specialty medical centers where salaried physicians can avoid the pressures of fee-for-service medicine,  while sharing their knowledge, and watching out for each other. As Dr. Donald  Berwick, head of the Institute for HealthCare Improvement puts it, “doctors shouldn’t be lonely.”

Comments

[Wel]

MAXIDEX WARNING

I had eye surgery and in the post-op pack was MAXIDEX(dexamethasone) drops by ALCON LABS.

Two days later I was BLIND

Use Google and enter EPOCRATES MAXIDEX to verify

[Lesley Klein]

My husband and I are seeking immediate legal representation that will be willing to take on our massive medical malpractice lawsuit. Although they have turned us down, the five different malpractice lawyers we have already consulted have acknowledged the validity of our case. Each was unable to take the case due to a conflict of interest or the complications it may take to try this case. So we are continuing to look for a lawyer or law firm to prosecute the doctor(s) who (m) on several occasions nearly killed my husband. Our time is running out, if there is anyone out there who can help, we surely need it. All aspects of our experiences are documented and true.
Since July of 2006, the careless mistake of doctors continues to cause my husband and I severe pain and suffering. One doctors mistake lead to a chain of events which ultimately left my husband with permanent damage that, will inevitably shorten his life expectancy as he now clings to life each day, having to be fed through a feeding tube for 10 hours a day. Since July of 2006 my husband has endured over 70 days in hospitals on 11 different occasions undergoing 10 surgical procedures. These incidents have devastated my husband and I, causing us extreme physical and emotional distress and put us in serious financial hardship. The past two years have been nightmare of the most horrific medical experiences involving several careless oversights, some extremely negligent behaviors, and a totally unbelievable display of lack of professionalism by some of the members of the South Florida medical community. If not for my vigilant involvement I would be a widow. These actions, incidents, and events that my husband and I have witnessed and experienced by some of the medical community that include several doctors, hospitals, and their staff was, and is, a disgrace to the entire medical profession. My husband has been the victim of multiple malpractice incidents, each backed by meticulous documentation.
After a long search we were finally sent to a bariatric specialist. They took the time to help, and thankfully they were able to save my husband's life this past March. They went in to insert a feeding tube, but were unable to insert the tube without doing a complete revision of my husband’s gastric bypass (Roux-En-Y) due to all of the other surgeries that he underwent. They still inserted the feeding tube, but his pouch connected to the esophagus was so damaged (causing the pain when eating, his esophagus was literally being strangled.) they had no choice but to make it smaller. Without the feeding tube he would die because he is unable to take in enough nourishment for a man his height and weight with the size of his newly connected pouch. That operation reports states and I Quote "Originally status post laparoscopic gastric bypass in October of 2003, complicated by perforated anastomosis in July of 2006." The doctor who mistakenly prescribed my husband Aspirin in May of 2006 caused that perforated anastomosis. From then until March of 2008 my husband underwent several procedures, which could have been avoided if another doctor actually fixed the problem instead of turning us away. Another issue is that the orthopedic surgeon who made the original mistake, is the largest in Broward County, with a whole wing @ CSMC dedicated to his patients, they even have commercials on TV for promotion.
The specific details of this case are lengthy and complicated, to give all details at this time would take too long, so if you are, or know, someone who may be interested in helping my husband and I to find representation to pursue our legal dispute, please send a reply of your interest to my e-mail address: lek856 @Comcast.net.
I appreciate the time that you took to read this passage, and look forward to corresponding to those with ideas or interest of our case.
Sincerely,
Mrs. L. KleinThis case involves a civil action involving personal injury. It is also the beginning of our medical negligence nightmare. I am seeking assistance from a civil attorney (preferably personal injury), to help file this Civil Action on behalf of my husband. This is a case Res ipsa loquitur: If you have the time please take a look.
Plaintiff: My Husband- A Patient; Defendant: A Doctor
Summary of syllogism:
• A doctor (the Defendant) prescribed a medication, which we allege ultimately caused severe injuries, damage, pain, and suffering.
• This doctor should have been reasonably aware that prescribing THAT medication to THIS (the Plaintiff) patient, [Case sensitive], may cause severe injury leading to serious damage. There is factual evidence existing, that we believe proves beyond a reasonable doubt, that this doctor had the appropriate knowledge to avoid causing these injuries. [Evidence located in hospital files; pre-op report sent by Primary Care Physician of patient prior to Unintentional tortuous action.]
• We allege that; a doctor with reasonably expected knowledge + that doctor writing the wrong prescription = Severe injuries, damage, loss, pain, and suffering.
• These, although unintentional, Tortuous Actions became known when the patient (my Husband) needed emergent surgery to repair a perforated jejunal ulcer (in a crucial area of the patient’s anatomy), [case sensitive] we allege were the effect of that specific medication prescribed by that doctor at that time.
• “Res ipsa loquitur.”
• The Plaintiff is seeking consideration of relief in the form of compensatory damages for the injuries, damages, loss, pain, and suffering, that we allege are caused by the Defendant’s Unintentional Tortuous Acts of Ordinary negligence; Negligence per se.
• Specific Ad damnum clause details to be determined at a later date.
If you feel I have a valid legal argument, any civil legal guidance would be greatly appreciated. Unfortunately our time is limited, partially due to the fact that I was looking for a malpractice attorney. After two years the effects of this alleged action continue to cause pain and suffering, [This as a result of other real medical malpractice claims that will need to be filed at a later date], finding an attorney has not been easy. Fortunately for us the most recent law firm whom reviewed our case was nice enough to file an extension, because they saw “bad medicine” however, they had chosen not to take our case. I’ve since learned the alleged Tort was unintentional; I now realize that Civil (personal injury) legal representation is now needed ASAP! If you or someone you know, who may be able to provide any type assistance to us please contact me. I appreciate and thank you for your time.
My name is Lesley; E-mail: lek856@comcast.net;
Sincerely,
Lesley

[Thomas Sharon, R.N., M.P.H]

Will someone please define "frivolous lawsuit"? What is the threshold? I've never seen a plaintiff's attorney take on a case without planning to make some money. I think if anyone is being frivolous its the doctors and hospital executives spending thousands on conference parties and can't make the payroll.

[Thomas Sharon, R.N., M.P.H]

Will someone please define "frivolous lawsuit"? What is the threshold? I've never seen a plaintiff's attorney take on a case without planning to make some money. I think if anyone is being frivolous its the doctors and hospital executives spending thousands on conference parties and can't make the payroll.

[Thomas Sharon, R.N., M.P.H]

I agree that this relationship of fear and mistrust that exists between providers and consumers in healthcare lends itself to more lawsuits in the face of unexplained and unexpected complications. However, health care records are accessible for the most part, so the oppotunity for proper screening is usually there, if the plaintiff's attorney employs a legal nurse consultant who has the experience and knowledge to know what will fly and what won't.

[Justin C.]

Medical Malpractice is one of the main concerns in the United States of America. In Italy, a criminal organization has been cranking out fake nursing diplomas for the amount of about €15,000 or about $19,000 US to aspiring nurses who don't wish to take the requisite training to enter the field properly. Some basic medical training was given to them in order for them to appear to know what they were doing in the hopes that nothing would lead back to the criminals. However, doctors and officials noted the amount of mistakes and eventually caught on. The US is also home to a host of malpractice cases, as about 50 to 90,000 cases are filed annually. Some are expected, as human nature takes over at some point and some errors are made. However, the horror stories circulate as the public is mortified from hearing about the wrong limbs or organs removed during surgery, or surgical instruments left inside a person. Perfection will never completely be achieved, but improvements could always be made. For instance, an issue noticed is the amount of work hours involved in internships and in a residency. Long shifts -- 80 weekly hours are common, with some shifts being reported as lasting as long as 37 hours or more. Sleep deprivation impairs judgment, reaction times, and thinking processes. If you go to the doctor, and he looks sleepy, maybe you should reschedule if you don't have a critical affliction.