Posts Tagged ‘medical negligence’

July 1 – New Residents, New Rules……Again!

Monday, June 13th, 2011

Last year, I wrote a blog on “The July Effect”, a long-observed phenomenon of increased hospital deaths during the month of July that was substantiated by medical data and statistics just last year. These data seemed to specifically relate these deaths to the influx of new medical school graduates into teaching hospitals as first-year residents of those institutions. The conclusions of the study seemed well-substantiated. I further elaborated on some of the potential causes of errors being made that could result in harm to patients; what I didn’t elaborate upon was the rigorous and demanding schedule that residents assume.

In 2003, the Accreditation Council for Graduate Medical Education (ACGME) instituted new policies regarding the time limitations of ALL residents, but specifically focused on the first year resident. These limitations were placed on the number of hours that residents could and should work in any given week or rotation in an effort to safeguard the health of the resident but more so to ensure the safety and well-being of patients being treated by these residents.

It is now 2011, and the ACGME is instituting even stricter limitations affecting both first year and mid-level residents; Nixon Peabody does a great job of delineating the changes in the guidelines. Much information has been published in the last year regarding the continued occurrence of medical errors despite protocols and safety mechanisms in place to protect patients (click on related blogs below). It seems that the ACGME is attempting to address some of these errors by addressing the fatigue factor of medical and surgical residents in training. The overall maximum hours per week will not change; it remains at 80 hours.  Yes, twice that of “normal” jobs. One big change is the limit on the maximum continuous duty period for first year residents; this will be decreased from 24 to 16 hours.  It will remain 24 hours for residents after their first year, but recommendations include “strategic napping.” Another change is the additional duty time, previously allotted as 6 extra hours to perform clinic duty, transfer of care, didactic training, etc.; for first year residents, these duties are to be included in the overall 80-hour work week, but after the first year, the residents will be allowed 4 additional hours. A third big change is the minimum time off between duty periods. Previously, it was noted that all residents “should have” 10 hours between shifts; year 1′s are still recommended to have 10  hours off, but they MUST HAVE AT LEAST 8! Intermediate-level residents should also have 10 hours off, but they also must have at least 8 hours off with a mandatory 14 hours off if they just completed a 24-hour shift. Final year residents are recommended to receive 8 hours off, but this is still being reviewed.  One thing that has not changed is the mandatory 1 day off in 7, averaged over 4 weeks.

Many of us watch the medical TV shows, but none of these shows really paint the true picture of medical residency training. As a Physician Assistant student, I trained alongside medical residents and medical students, alike. My training mirrored theirs in the hospital setting, and it happened well before the 2003 ACGME recommendations. There were times during my surgery rotation in a trauma center during which I worked 36 hours straight, followed by 10 hours off, then back to 10- and 12-hour days. The working hours entailed clinic time, managing daily in-patient care, many hours in the operating room, admitting patients during the overnight hours from the emergency room and emergency surgery for trauma victims, hours and hours at a time, in the overnight hours and during the day.  By the end of 36 hours, the exhaustion was indescribable. It is easy to understand how and why mistakes happen. After these crazy shifts, no one ever looked so glamorous as those who are depicted on television shows…..TRUST ME!

July 1, 2011, marks the date when over 100,000 medical residents across the USA from ACGME-accredited training programs start their training in teaching hospitals/institutions across this great nation. We should applaud the ACGME for looking at the data, analyzing studies regarding sleep deprivation, and putting forth these guidelines, not only to aid in patient safety but also to protect the health and well-being of these doctors in training. The pressures of residency are incredible. It is interesting that there was and still is opposition to the duty-hour limitations, citing oppositional rationale such as the residents do not learn enough in 16 hours, and small institutions do not have the support staff to treat all of the patients without the addition of medical resident hours.

So, who is going to fill those gaps created by the resident-hour restrictions placed by the ACGME come July 1st? Each institution will have to look at its own hospital model and decide according to current standards. In 2003, many of these gaps were filled by Physician Assistants and Nurse Practitioners; I suspect this will again be the case.  These mid-level practitioners are quite capable of providing many of the services necessary in hospital settings; they are a growing and well-respected addition to the healthcare team, and I suspect that their usefulness and potential will be more fully appreciated with the institution of healthcare reform!

For more information and Frequently Asked Questions (FAQs) regarding the ACGME guidelines, please go to the website and click on the links!

And, no matter who is caring for you or your loved one, never be afraid to ask questions about therapies and medications being ordered. Be informed!

Related Posts:

“The July Effect”: Where To Seek Medical Care When The Heat Is On

Medical Malpractice – Serious Medical Errors: Failure of the System or Just Plain Ignorance

Study Finds Regional Hospitals Often Are Better At Preventing Medical Errors Than Academic Centers – Kaiser Health News

Tort Reform or Just Plain Medical Care Reform: the debate continues as thousands are injured annually in US hospitals

 

 

 

 

 

 

Doctors Disciplined by Their Own Hospitals Escape Action by Licensing Boards. Who’s at Fault?

Thursday, March 24th, 2011

Public Citizen logo

Public Citizen recently posted a report that revealed an extremely disturbing failure by licensing boards and/or hospitals to take appropriate disciplinary action against physicians, who have had their hospital privileges revoked, suspended or restricted.

At the heart of this revelation is the fact that when a physician does have action taken against his/her hospital privileges, the hospital is required to report such negative, adverse action to the jurisdiction’s medical licensing board. Nevertheless, as Public Citizen reports, during the time period being analyzed by Public Citizen (1990 to 2009), almost 6,000 such physicians have escaped any disciplinary action by state medical boards.

Of 10,672 physicians listed in the NPDB (National Practitioner Data Bank) for having clinical privileges revoked or restricted by hospitals, just 45 percent of them also had one or more licensing actions taken against them by state medical boards. That means 55 percent of them – 5,887 doctors – escaped any licensing action by the state. The study examined the NPDB’s Public Use File from its inception in 1990 to 2009.

For anyone familiar with how hospitals operate, it usually takes some egregious conduct for a hospital to take action against one of its privileged physicians. Threats of lawsuits by the physician against the institution are many times the first defense taken by a physician causing many hospitals to back-down from taking any disciplinary action. Often, those called upon to review the conduct of their fellow physicians are hesitant to discipline their peers too harshly for a multitude of reasons – not the least of which is the concept of “there but for the grace of God go I.”

That being said, how is it that when such an extraordinary step such as revocation, suspension or curtailment of hospital privileges does take place, these physicians escape being disciplined by their state medical boards?

Dr. Sidney Wolfe, director of Public Citizen’s Health Research Group and overseer of the study, offers these thoughts:

One of two things is happening, and either is alarming. Either state medical boards are receiving this disturbing information from hospitals but not acting upon it, or much less likely, they are not receiving the information at all. Something is broken and needs to be fixed.

While I personally don’t purport to know the “reporting requirements” for all medical licensing boards throughout the United States, let me share with you the reporting requirements and legislative mandate of two jurisdictions with which I am familiar.

In Maryland, one need only look at the Maryland Board of Physicians (this state’s regulatory body) “responsible for licensing and disciplining physicians, physician assistants, respiratory care practitioners, licensed radiation therapists, radiographers, nuclear medicine technologists, radiologist assistants, and polysomnographic technologists” Hospital Reporting Requirements FAQ to get the answer as to whether or not such hospital actions are a “reportable event.”

By law, hospitals must report to the Board – within 10 days of action – any action taken that immediately affects the privileges of a practitioner or any other health professional regulated by the Board, based on any of the grounds listed in Sections 14-404 (Physicians), 14-5A-17 (Respiratory Care), 14-5B-14 (Radiation Therapists, Radiographers, Nuclear Medicine Technologists, and Radiologist Assistants), 15-314 (Physician Assistants), and 14-5C-17 (Polysomnographic Technologists) of the Medical Practice Act. These matters generally relate to questions of competence, performance, unprofessional practices and unethical practices.

In the District of Columbia, once you work your way through the maze of online links, you eventually find that it is the Board of Medicine, “a division within the DC Department of Health, Health Regulation and Licensing Administration (HRLA), that “has the responsibility to regulate the practice of medicine in the District of Columbia.

What is interesting is that on its website, the D.C. Board of Medicine takes pride in the fact that in 2010, Public Citizen, the very source of criticism of the various licensing agencies in the most recent 2011 report being discussed here, listed D.C. as No. 16 in the nation in “living up to their obligations to protect patients from doctors who are practicing substandard medicine.” A review of the 2010 report by Public Citizen reveals that D.C. had previously been ranked No. 42 in terms of “meeting its obligations” to “protect patients from doctors…practicing substandard medicine.”

So exactly where is the proverbial ball being dropped? Is it the hospital that is failing to report its adverse action to the medical board? Is it the medical board, having been told of the adverse action, that sweeps the sins of the offending physician under the rug? Whichever it is – and it’s most likely a combination of the two to some extent but more likely the latter – those who suffer in the final analysis are patients, who unknowingly come under the care of these questionable physicians.

We are not talking here about a physician, who is otherwise a competent, skilled practitioner in his or her area of specialty, but who has a “bad day” and renders substandard care to a patient. Unfortunately, that happens with some degree of regularity across the nation every day. For a hospital to go to the point of bringing one of its own up on disciplinary charges and taking adverse action against that physician is a major step – one reflecting by necessity such a level of incompetency, a pattern of unsafe, bad care, outrageous conduct and the like that it must call into question the overall competency, integrity and character of that physician. Then, if that is the case – which it clearly must be – why are such physicians allowed to simply pull-up stakes and move on elsewhere to practice their trade? How is this in the interest of patient safety, which is precisely one of the main reasons for the very existence of medical licensing boards?

Public Citizen didn’t just report the findings of its analysis; it did something about it.

Public Citizen today sent the report to Kathleen Sebelius, Secretary of the Department of Health and Human Services, urging the agency’s Office of Inspector General to reinstitute investigations of state medical boards, something it has not done since 1993. Public Citizen also is notifying the 33 medical boards that have had the worst records in disciplining these doctors.

We commend Public Citizen for its investigation and report. While it is no doubt important that this problem comes to light, it is even more important that it be corrected – and soon. Will Secretary Sebelius take action? Will the licensing boards clean-up their act now that their misdeeds have been brought to the public’s attention? If hospitals are, in fact, not reporting their adverse actions, will there be repercussions for this failure? When will medical boards do what they are constituted to do – protect the safety and well-being of patientsnot when they feel like it, but when they are mandated to do it?

Why do so many patients die when their in-hospital alarms go unheard or unheeded?

Thursday, February 17th, 2011

ICU alarm monitor

Sunday’s edition (February 13, 2011) of the the Boston Globe online (boston.com) tells a chilling story of how many times the alarms used to monitor patients go unheard and unheeded by medical staff leading to death or catastrophic injuries for patients throughout this country. The story, which was a two part series (for the second installment, see For nurses, it’s a constant dash to respond to alarms) by Globe reporter Liz Kowalczyk, narrates numerous incidents in which alarms simply went unnoticed, ignored or unmonitored. Numerous other issues such as lack of education of hospital staff as to how to properly connect the devices, failures to realize the batteries had gone dead, turning the alarms so low in volume they could not be heard, taping over amplification systems to avoid the “annoyance” of the alarms and the like are also chronicled in this series. While it is documented by an analysis of the FDA’s database of adverse events involving medical devices that 216 patients died nationwide between 2005 and mid-2010, it is also certain that this number of alarm-related deaths is probably much higher. The ECRI Institute, which was hired by the Globe to analyze the FDA database, believes that the health care industry under-reports these cases to the FDA.

Some examples of alarm-related deaths

Since links to the Globe’s original articles are provided above, I will not go into the level of detail that is otherwise available through reading the original reports. Here is a sampling of the types of “alarm failures” leading to patient deaths:

  • staff misprogrammed complicated monitors
  • staff had forgotten to turn the monitors on
  • batteries had gone dead leading and failed to function (one instance where a man had a “flat line” for more than two hours that went undetected)
  • defective wires or connections on the monitors
  • malfunction or design flaws in the monitoring devices
  • staff ignored the device warnings because of “alarm fatigure

Alarm Fatigue

According to one computation at Johns Hopkins Hospital in one 15 bed unit as to how often alarms go off during the course of day, it was documented that there were 942 alarms per day – “about 1 critical alarm every 90 seconds.” There is no doubt that the number of alarms and the clinical settings in which they are used have increased over the years. As Ms. Kowalczyk noted, “[W]ith the use of monitors rising, their beeps can become so relentless, and false alarms so numerous, that nurses can become desensitized – sometimes leaving patients to die without anyone rushing to their bedside.”

In some cases, busy nurses have not heard or ignored alarms warning of failing batteries or other problems not considered life-threatening. But even the highest-level crisis alarms, which are typically faster and higher-pitched, can go unheeded. At one undisclosed US hospital last year, manufacturer Philips Healthcare, based in Andover, found that one of its cardiac monitors blared at least 19 dangerous-arrhythmia alarms over nearly two hours but that staff, for unexplained reasons, temporarily silenced them at the central nursing station without “providing therapy warranted for this patient.’’ The patient died, according to Philips’s report to federal officials.

Keep in mind that many of these alarms are not only audible in the patient rooms; they also sound at the central nurse’s station. In some instances, hospitals have put up hallway speakers for nurses to hear the alarms more readily. In other facilities, in addition to audible alarms, various pieces of critical data information (e.g. heart rhythm, heart rate) are visible on displays at nurses stations and in some places, it is reported, “on brightly colored scrolling signs in corridors.”

The article quotes one nurse at Boston Medical Center, who addresses some of the issues at the heart of this “alarm fatigue” phenomenon.

Everyone who walks through the door gets a monitor. We have 17 [types of alarms that can go off at any time. They all have different pitches and different sounds. You hear alarms all the time. It becomes...background

False Alarms - the cry wolf issue

It is well known that some alarms can go off when a patient sits up, coughs, turns or makes other normal movements. According to the Globe report, "'[s]ome studies have found that more than 85 percent of the alarms are false.” I have no idea how this statistic was compiled, but even if it is accurate (which is debatable), that still leaves dozens if not hundreds (if not thousands) of alarms going off daily in every hospital throughout this country that are an indication of a patient in need of rapid response life-saving care.

Another nurse is quoted by the Globe in expressing both the frustration and the need for attentiveness when the alarm goes off. “You have to respond to the alarm[, b]ut there are some days when you feel you’re just running from alarm to alarm. It can be exasperating.”

The Fix

The short answer appears to be: there is no easy, quick fix. Here are some of the measures institutions have taken to address this problem:

  • working with engineers at prestigious institutions (e.g. MIT’s work with Boston’s Children’s Hospital) to develop more sophisticated monitors to identify true crisis alarms.
  • hiring of dedicated monitor technicians and/or nurses, who man the central nurses’ station to triage alarms.
  • specialized education programs to avoid misprogramming or connection mistakes due to lack of knowledge by staff
  • establishing tighter standards of which patients should be connected to alarmed monitors – to cut down on the “background noise” of alarms.
  • replacement of old equipment for more advanced, accurate alarm/monitor systems
  • implementation of new programs in-hospital to require bioengineers to check the monitors daily to make sure they are working properly.
  • implementation of standardized settings on machines so that alarms are not turned so low they are non longer audible. (One case of a patient death was attributed to staff turning the the “vexatious” alarm down to a 40% of full volume – no one responded to an arrhythmia alarm for 40 minutes because no one heard the reduced volume alarm during that time.)
  • changing batteries every day in monitors to make sure they are, in fact, charged and working

The Blame Game

As you might suspect, the finger-pointing that takes place after a patient is found dead or severely injured is rampant. As the Globe reports, “Initially, hospitals almost always blame the monitor’s alarm for not sounding when it should have, according to reports. But the company investigations show the assertion is often false.”

In 40 of the cases reviewed by the Globe, the alarms did not sound, usually because the staff had not properly programmed or turned on the machines.; in only eight cases was there a malfunction or design flaw.

[I]n nearly 100 cases, manufacturers ere unable to determine exactly what went wrong, often because they didn’t have enough information, or they told federal regulators they still were reviewing the death.

Where to from here?

While I certainly don’t have to contend with the incessant noise of alarms going off all day long, nor am I required to jump away from what I’m doing to respond to a false alarm, I can’t help but think that in a health industry as advanced as ours allegedly is, there must be some steps that can readily be taken so that others don’t die because some nurse has “alarm fatigue,” or a battery died, or the volume was turned down too low to avoid the annoyance of the alarm or some other ill-conceived and unacceptable reason.

What suggestions do you have for the healthcare industry to deal with this problem? Have you ever worked in a setting where this is a problem? If so, how did you and/or your institution deal with this issue? There are a lot of smart people in bioengineering and in our health institutions; why is this still such a problem in a country that claims to be so advanced?

Image by ectopicinteractive.com

FDA warning to healthcare professionals: use sterile prep pads!

Tuesday, February 8th, 2011

Sterile Prep Pads

On February 1, 2011, the FDA issues a News Release about the use of non-sterile alcohol prep pads in certain clinical situations.

“Non-sterile pads are not intended to prep patients prior to procedures requiring strict sterility measures and should not be used on patients with a depressed immune system, to prep patients for catheter insertion, or to prep patients prior to surgery.”

This reminder/warning was issued in the wake of a recall on January 5th of all lots of alcohol prep pads and swabs manufactured by The Triad Group of Hartland, Wisconsin citing concerns about the product’s potential contamination with Bacillus cereus, a bacterium that can be harmful to humans.

While I guess we all need reminders now and then, do healthcare professionals really use non-sterile pads for pre-procedure prep when sterile technique is called for? Isn’t this basic training?

We have heard over and over again about the problems with infection control in medical facilities. Isn’t this a basic way to improve infection control – using sterile prep pads when doing open or penetrating skin procedures? Oh my!

While we in law deal with the end-result of failures to use “sterile techniques” – including the basic concept of using sterile pads - is this really such a problem in the healthcare industry that the FDA needs to remind providers to use the right kind of pad?

A number of our readers are members of the healthcare profession. Tell us – please, is this really a problem in the industry? Are there not basic protocol, stock control, safety measures in place that deal with this apparent problem? The rest of our readers either have been a patient or have a family member who’s been a patient; have you ever encountered a problem with an infection because your provider used the wrong type of prep pad?

Image from dailymed.nlm.nih.gov

The Reality of Medical Malpractice Lawsuits: Demystifying and Dismantling the Medical Profession’s Arguments

Monday, December 20th, 2010

A couple of weeks ago, Dr. Kevin Pho published a blog in which he argued that medical malpractices lawyers do not help improve patient safety. My mentor and good friend, Brian Nash, (a medical malpractice lawyer) posted a counter-blog, disputing the validity of Dr. Pho’s conclusion. As a result of these two postings, the two author’s agreed to post Brian Nash’s piece on Dr. Pho’s website – KevinMD.com. This posting, Open dialogue on medical malpractice and patient safety led to an amazing, extensive, thought-provoking and still ongoing public discussion about the role of physicians, lawyers and patients in promoting patient safety. The last time I checked, this discussion generated just over 190 comments

Although many topics were addressed during this discussion, I could not help but notice an underlying sentiment of distrust with respect to lawyers in many of the comments posted in support of Dr. Pho’s blog.  Statements like “lawyers don’t care about the quality of their cases as long as they make money,” or “the medical malpractice system is failing because most cases are filed over bad outcomes and not medical negligence.” Such comments reflect an overall attitude that medical malpractice lawyers are the reason why there is an alleged nationwide medical malpractice crisis.

This argument is terribly misguided and, frankly, based on a number of false assumptions about the practice of law. In part, the misunderstanding stems from the fact that most critics are not lawyers and, thus, not familiar with a lawyer’s everyday incentives, interests, limitations, and obligations. Although a law review article would be more befitting this subject, the following discussion outlines a few considerations that should hopefully illuminate what drives a lawyer’s analysis with respect to the type of cases that should be pursued.

Ethics

Let me begin with the consideration that is most important to me. Lawyers, unlike most other service providers in the workforce, are bound by a code of ethics.  If they don’t follow it, they can be disciplined and even disbarred.  It is as simple as this: in each state, lawyers are subject to a plethora of proscriptive and prescriptive rules. For example, in Maryland, each lawyer must comply with the rules of professional conduct. These rules govern virtually every aspect of legal practice (i.e. conflicts of interest, acting in good faith, etc). In addition to these rules, Maryland lawyers must also abide by local rules of court, the rules of civil procedure and a plethora of cases dictating how lawyers should act.  In this matrix of Rules, many rules directly or indirectly prohibit a lawyer from making frivolous claims, pursuing claims without a good faith basis, and taking unsupported positions during the course of litigation, among other things.

In the District of Columbia, relatively recent legislation requires the giving of a substantive (i.e. not just – I’m going to sue you) notice to the potential defendant(s), which outlines the essential theories of the claim. Failure to give some notice in timely fashion can – and often does – result in the dismissal of a lawsuit in which this notice was not given. Once filed, a patient-plaintiff is, in essence, bound by the same requirements of proving his/her case as in Maryland, but more on that later.

A cynic may argue that the rules are no good if lawyers are not willing to live by them. The assumption that most lawyers don’t care about the rules of professional conduct is just that, an assumption – and a misguided one at that! Most of us care deeply about our clients. Most of us are very proud to be lawyers, and the vast majority of us diligently and religiously comply with our ethical obligations.   You don’t have to believe me; call your state’s bar association for studies directly on point.

As in any other profession, a few bad apples give us all a bad name from time to time.  When this happens, other lawyers are quick to initiate disciplinary actions. In medical malpractice cases, the persons with the greatest incentive to report unethical behavior are the defendant health care providers and their lawyers.  As you may suspect, reporting bad behavior in an adversarial system is a bit more incentivized when compared with reporting among physicians, who practice in a collaborative and non-adversarial environment (i.e. the same hospital, practice group or health care system).

The Financial Realities

In addition to various ethical constraints, I am convinced beyond all doubt that a lawyer would have to be completely out of his/her mind to pursue a meritless medical malpractice case. Don’t forget that a law practice is a business just like any other business. The vast majority of plaintiff medical negligence lawyers practice in small firms. Operational and the litigation costs are very high (if you know physicians who testify as experts in medical malpractice cases, for plaintiffs or defendants, ask them what their hourly charge is to review medical records, give depositions and testify in court. It would be enough in an of itself to make you reconsider your career choice). Generally speaking, most medical malpractice cases (conservatively estimated) require between $50k and $100k to bring to trial. Additionally, each lawyer can only pursue a small number of cases to insure diligence, and yes, compliance with the ethical rules of professional conduct. Keep in mind that the vast majority of medical malpractice cases are contingency fee cases, which means that the law firm (where permitted by law and ethics) advances all of the costs. None of these costs are recouped if the case is lost.

The obvious question – or at least what should be an obvious question is: why would a lawyer want to invest his/her money in a meritless or questionable case?  The simple economic reality of a medical malpractice firm is that it can never afford to pursue frivolous or meritless claims.  Pursing even questionable cases is a good way to go bankrupt. When a frivolous case is filed, guess who is waiting on the other side of the aisle ready to devour it and the lawyer who filed it? Unlike plaintiff lawyers, defense lawyers get paid by the hour. Their spending power on litigation is enormous since they have the financial backing of multi-million dollar insurance companies and/or self-insured institutions.  Because defense lawyers get paid by the hour, they have every incentive in the world to use every known legal tool and maneuver to increase the costs of litigation and defeat the claims against their clients.

Simply put, survival of the fittest (and the smartest) is the name of the game when it comes to choosing cases for litigation.  Every plaintiff’s lawyer asks this question more than any other before signing a case: just how strong is the evidence of negligence? The last thing a lawyer wants to  do is spend thousands of dollars on a case that is frivolous and destined to fail.  When handled by lawyers who are experienced in handling cases of medical negligence/malpractice, if case is in litigation, believe me, it is as far from being frivolous as it can get. This doesn’t mean the patient/plaintiff always wins. It simply a matter of common sense – experienced medical malpractice lawyers screen cases vigorously and don’t (and certainly can’t) make a living out of filing non-meritorious lawsuits.

Procedural Requirements

Assuming that a lawyer foolishly chooses to represent a client with a weak or meritless claim, there are still a number of procedural requirements that are purposely designed to prevent such claims.  In most states, a number of procedural/jurisdictional thresholds must be met before a case can even be filed in court. Such requirements are specifically designed to weed out non-meritorious cases.

For example, in Maryland, a lawyer must obtain a very specific certificate and report from a qualified physician, specifying that the defendant health care provider breached the standard of care (failed to act reasonably under the circumstances) and that this breach of acceptable medical standards of care caused the patient-plaintiff’s injuries.  The case must first be filed with a special arbitration commission and have certifying expert certificates and reports before it can be filed in court.  Throughout litigation, a plaintiff is required to obtain supportive, competent opinions from a number of medical experts. These experts cannot just generally or vaguely support the patient-plaintiff’s claim. They must specifically establish 1) what the defendant  health care provider should have done to comply with the standard of care, 2) that the  defendant health care provider breached the standard of care, 3) that the breach in the standard of care caused Plaintiff’s injuries, and 4) what patient’s injuries actually are – not just sheer speculative damages. Such testimony can not come from the lawyer, his/her client, or a lay person; it must come from other physicians. Medical malpractice litigation is not possible without the participation of health care providers, who are willing to testify as experts on behalf of the patient. As if this was not enough, an expert’s testimony cannot be based on a guess, speculation, or conjecture. Each expert opinion must be expressed to a reasonable degree of medical probability, and it must have a scientific basis. These procedural requirements are just the tip of a very large iceberg designed to prevent meritless cases.

Don’t Buy Into the Myths

The simple truth is that real (those who know what they are doing in this specialty area of law) medical malpractice lawyers have very little – if any – incentive to pursue frivolous, weak or questionable cases. Such cases are expensive, they must be supported by other physicians, and they must survive the rigor and scrutiny of litigation.

I often hear people say that most medical malpractice cases are filed because of bad outcomes and not because of real medical malpractice.  I am utterly convinced that such a statement could not be further from the truth. If it were true, most, if not all medical malpractice lawyers would be out of business. That’s the hard, cold reality. Don’t buy into the myths that are many times at the core of this s0-called medical malpractice crisis debate.

Have you been a party in a medical malpractice/negligence lawsuit? Have you been a juror in a medical negligence case? Even been a witness in these cases? What has been your experience? Share your story – let’s get to the real truth of issues that should be at the core of the “discussion” – “debate.”

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Related Posts:

Every Bad Outcome Does Not a Malpractice Case Make! Some Practical Advice

Malpractice System Doesn’t Improve Patient Safety – Oh Really?

Tort Reform or Just Plain Medical Care Reform: the debate continues as thousands are injured annually in US

Many Doctors Don’t Blow Whistle on Colleagues



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Malpractice System Doesn’t Improve Patient Safety – Oh, Really?

Tuesday, November 30th, 2010

When I woke this morning, I was trying to think of some good subjects for a blog. Writer’s block – or topic block – struck. With some draft posts sitting in my WordPress queue, I gave thought to putting the final touches on one, but it was just not ready. Still stuck, I headed for Google Reader, and there it was – a posting by KevinMD.com on MedPageToday entitled “The malpractice system doesn’t improve patient safety.” Problem solved. Topic served on a platter. Thanks, Dr. Kevin!

Dr. Kevin (Kevin Pho, M.D.) has been a source of inspiration on more than one occasion. I’ll give it to him – he writes on matters that are “controversial” and many times has the “call to action” concept of blogging down to a science. So here’s my return “call to action.”

Dr. Kevin’s Argument

In his blog, Dr. Kevin acknowledges that in the “world of medical error, truth is often clouded in secrecy.” He then points out that “…taking the bold step of publicly describing your mistake is a brave one. Some would say it’s long overdue.” Well so far, Dr. K, we’re on the same track!

He then poses the question:

There have been studies that show an apology and admission of error lead to a lower rate of being sued. Beyond the malpractice implications, it’s simply the right thing to do. So, why isn’t it happening more often?

Dr. Kevin then provides a commentary by Hillary Clinton and Barack Obama in a perspective they “penned” in 2006 in The New England Journal of Medicine to the effect that “many errors in medicine are not due to bad doctors intentionally trying to hurt patients, but on system-wide errors…”

I’m wondering if Dr. Kevin appreciates the difference between the concepts of negligence and intentional tort? If there are physicians intentionally trying to hurt patients, we have a bigger problem on our hands than I ever realized. Whose conduct leads to “system-wide errors”? Answer: the health care providers and administrators of health care facilities whose acts of omission or commission create such system-wide errors and/or permit them to exist.

After citing the now famous statistics of the 1999 Institute of Medicine (IOM) report that told the public that “as many as 98,000 deaths in the United States result of failed system and procedures,” Dr. Kevin then gets to the root cause analysis of his polemic:

The malpractice system does a lousy job to improve patient safety (along with poorly compensating injured patients). * * * Every error should be discussed in the open, used to improve the care of our patients, and reduce the risk of future mistakes.

The fact that that’s not happening can be chalked up to the adversarial nature of our flawed malpractice system, which encourages secrecy, suppresses apologies, and does little to improve patient safety.

Well, Dr. Kevin, you and I now go different paths.

Open Discussion To Improve Patient Safety

So exactly what is this system in place to have an “open discussion to improve patient safety,” Dr. Kevin? Physicians have had a system of policing themselves for a long, long time. I believe you call it peer review. If this system is so effective, why, after decades of having an “open discussion” (that is done in secrecy, by the way) do 98,000 deaths occur in this country annually. The IOM report was ostensibly designed to create a reporting system of errors to identify, analyze and correct these so-called “system-wide errors.” Interestingly, I haven’t seen an update on just how the death rate has decreased in the last eleven  years! It’s a great concept but only as good as its implementation. Are deaths, catastrophic injuries, life-altering errors still occurring at an alarming rate? Oh, I suspect so – based on the number of calls our firm gets from people whose lives have been turned upside down after suffering from bad medical care.

The indisputable theme of Dr. Kevin’s post is that the reasons  patient safety has not improved at an acceptable rate is because of the media (e.g. in its unfair and hyped coverage of “Dr. Ring’s story” ) and “to the adversarial nature of a flawed malpractice system, which encourages secrecy, suppresses apologies, and does little to improve patient safety.”

Really? Let’s take a look at the reasons Dr. Kevin espouses.

Encourages Secrecy

The last time I checked, which was yesterday unless something happened after I left work last night, lawsuits are played out in public forums. Where do you conduct peer review, Dr. Kevin? What laws do you have that make the investigations of those peer review sessions not discoverable in lawsuits? In a lawsuit, both sides get to put it out there in public. Seems to me that a bit more of an “open discussion” than your self-policing, which, by the way, doesn’t seem to have done a great job of improving patient safety.

I fully understand the concept behind the protections of peer review. In essence, the protections are premised on the belief that if peer review is not protected from disclosure, an honest, open assessment of care rendered (for improvement in care) will not take place. What I don’t understand is why, when one’s peers find fault, a health care provider and/or the insurer simply fight to the bitter costly end of litigation in order to prove their peers wrong. Have you done an analysis on the costs associated with defending medical malpractice cases where the care is outright poor? I’ll bet that’s an astounding figure. Maybe correction on that score would improve the cost of medical care.

Suppresses Apologies

I suspect what the good doctor is referring to is the concept that if a physician apologizes for his/her malpractice, this might be used against him/her in a court of law as an admission against interest. Well, Dr. Kevin, have you been keeping track of the legislative proposals that would make such “admissions” – inadmissible? I might suggest that the medical profession spend time advocating for that legislative change rather than condemning the “flawed malpractice system” I would also invite attention to the programs that are apparently still in their infant stages whereby hospitals and health care systems do admit fault and seek early case resolution. Query: just how well have these taken off? Seems like this is a good idea – in theory. Any particular reason the medical profession hasn’t embraced the concept nationwide? While cogitating on that issue, perhaps some can also share their thoughts on why it is that the care givers think about the legal implications first when they are meeting with a family whose lives have been devastated by outright negligence. I believe it is you, Dr. Kevin, who writes blogs about physicians being patient advocates. Is this just another theoretical concept that your colleagues have a hard time putting into action? Just a tip – there are ways to apologize and have such apologies remain inadmissible in a court of law. Perhaps you ought to check those out and share them with your colleagues who are standing in line to apologize for their malpractice. Just a hint: confidential, early intervention proceedings. They would go a long way with the families whose lives have been ruined. But…does the medical community really need protection to just admit malpractice has occurred – when it has? Apparently so… Oh, I forgot, it’s the flawed malpractice system and the press, not the basic integrity of the health care provider, that are the root causes of the problem.

Does Little to Improve Patient Safety

I respectfully disagree, Dr. Kevin. Are you suggesting that when a meritorious lawsuit is brought that it doesn’t make at least those involved more aware? Do you accept the proposition that such health care providers might make better decisions/judgments when faced with a similar clinical situation?

Having previously represented physicians and health care institutions for decades before representing the victims of medical malpractice, let me assure you that the message does resonate with many, if not most, defendants in a medical malpractice case.

Interestingly, it has also affected those who are not directly involved. Do you really think that verdicts in cases aren’t discussed by other health care providers? Do you really believe that when bad care has occurred and has seriously injured someone that colleagues haven’t paused and self-examined their own practices – hopefully not repeating the same mistake(s)? I refuse to believe that so-called physician hubris is really that bad? In fact, my extensive experience with physicians has led me to believe that there lives are dedicated to doing the right thing for their patients, which could well include self-analysis of prior conduct.

There are so many excellent, dedicated health care providers who do take stock of the practices of others played out in litigation and change their own practices. I have personally witnessed dedicated, caring health care administrators and risk managers undertaking “root cause analyses” to correct system failures. Many, many times the genesis of these analyses are medical malpractice cases they have had to confront.

I am constantly being told by expert witnesses on both sides of litigation that they have learned so much about practice issues and patterns that it has helped them improve their own practices for the betterment of patient safety. Maybe they were all just making this up, but I think not!

Permit me to share another piece of information. One of the primary motivations – at least for our clients – for bringing a lawsuit is not about money – it’s about the client’s hope that some other patient won’t suffer the same fate they did. Others just want to know what happened. Maybe if the medical profession were to adopt a policy of honesty, open discussion and willingness to admit fault when it occurs, there would be fewer lawsuits and improvement in patient safety.

That really is what it’s all about, Dr. Kevin. Believe what  you want; however, practice what you preach: be a patient advocate.

An Invitation for an “Open Discussion”

Dr. Kevin, your posts and those of  your guest bloggers have been applauded by me and many others for a long time. They are thought-provoking, well written and – yes – many times controversial. As you know, one of the hallmarks of a good blog post is a call to action. Well – here’s my call to action.

Perhaps a public airing of some of the key issues relating to the malpractice system (which is flawed in a number of respects) and the health care system (which is not free of its own flaws) would lead to improvement in patient safety and the betterment of both systems. You and your readers just might be surprised as to how many things there are about which we might agree. There is no doubt that we may have to agree to disagree, but maybe – just maybe – a public airing of these issues will have the same result – true improvement in both systems.

Tort Reform or Just Plain Medical Care Reform: the debate continues as thousands are injured annually in US hospitals

Monday, October 25th, 2010

HEADLINES AND EXCERPTS

Wall Street Journal, September 28, 2010, diagnostic errors kill 40,000 to 80,000 patients annually based on autopsy studies over past 4 decades.

American Medical News, August 23, 2010, an estimated 1.5 million medical errors cost the US economy $19.5 billion in 2008.  

CNBC.com, October 19, 2010, the Colorado Physician Insurance Company found between 2002 and 2008, 25 surgeries were performed on the wrong patient, and another 107 surgeries were performed on the wrong body part. One-fourth, approximately 6 patients suffered significant injury. There was 1 death.

News from the National Academies, October 21, 2006, medication errors injure 1.5 million people annually. 400,000 injuries occur in hospitals; 800,000 occur in longterm care; and 530,000 occur in Medicare outpatient clinics. Estimates were conservative.  Treatment of hospital injuries cost more then $43.5 billion annually. Lost wages, productivity, or additional healthcare costs were not included.

HealthGrades, April 2008, published 3 years of Medicare data from 2004-2006 in their 5th Annual Patient Safety in Hospitals Study. They found 1.12 million patient safety incidents occurred representing a 3% incident rate; and 270,491 in hospital deaths were directly attributable to an incident. The incident rate was unchanged from the 4 previous annual reports.  The incidents accounted for $8.8 billion in excess cost.

HealthGrades, April 2009, also reported improved data in the 6th Annual Patient Safety in Hospitals Study.  Inpatient Medicare admissions from 2005 to 2007 were studied. Only 913,215 patient safety incidents occurred with an associated $6.9 billion in excess costs. Instead of a 1 in 5 chance of dying from a safety incident in 2004-2008; patients’ odds improved to 1 in 10 chance of dying from an incident by 2007.

Institute of Medicine of the National Academy of Sciences, 2000, estimated medical errors kill up to 98,000 US hospital patients each year.

_______________________________

I decided to write about patient injuries in American hospitals 2010 because – frankly – my career in healthcare quality assurance and risk management was launched as a direct result of a landmark study released in 1978.  Don Harper Mills, M.D. published a study known as the California Medical Insurance Feasibility Study (CMIFS). In 1978, no one knew how many people were actually being injured in hospitals. There was a crisis of available liability insurance for physicians and hospitals, and as a result, compensation alternatives were being considered. In order to fund compensation alternatives for patient victims, actual injury data was needed.

Dr. Mills and his colleagues manually reviewed 20,864 hospital patient medical records from 23 representative California hospitals for the year 1974. They found 970 patients were directly injured by a medical mistake. This was 4.5% of the entire records sampling.  What shook the healthcare industry to the core in 1978 was the following:

When expanding the study sample size to the full statewide population, the data showed there were:

  • 6.5% minor permanent injuries – 9,100 patients;
  • 3.8%  major permanent injuries – 5,300 patients; and
  • 9.7% suffered death – 13,600 patients.

If all of these patients were to be fully compensated under full disclosure and/or no fault insurance plans, the state would not have been able to fund the approach. Insurance companies and states across the country began looking at closed medical malpractice claims, statewide data, medical records that showed the same trends were a national and not just a “California” problem.

Throughout the early 1980’s, we saw state and federal regulations mandating hospitals implement physician peer review and quality assurance programs. Medical malpractice insurance companies and brokers sent consultants into hospitals to begin teaching staff how to set up systems for monitoring care and correcting/improving systems.

The American Society of Healthcare Risk Management was born creating national and state-based initiatives to reduce injuries. The American College of Surgeons published their first Patient Safety Manual for medical staff leadership.

Initiatives from the Joint Commission for the Accreditation of Healthcare Organizations continued into the 1980’s and 1990’s with expanded quality improvement standards.

This great computer age has allowed more sophisticated and widespread comparison of insurance, state and national data than ever before. The data tragically continues to reveal dismal results despite decades of government, state, regulatory, and social pressures for hospitals, physicians, and healthcare professionals to improve.

THE DEBATE RAGES ON …WHAT WILL FIX IT?

While the AMA continues to whine about being sued too often and the tragic impact on physicians, as you see the data show that for decades, patients continued to be significantly injured. A study by Harvard researchers, who reviewed 1452 medical malpractice closed claims in 2006, reported 75% had legal awards consistent with their merit. Two reports by Dartmouth economists in 2005 and RAND in 2004 found awards were consistent with the rising costs of medical care and average awards grew less than real income. The more costly medical care was responsible for more then half the jury awards. A study of American insurance data between 2001 and 2004 showed malpractice awards per doctor were stable or fell, and premium increases were not connected to awards.

In 2009, the Canadian Medical Association Journal reported there was no evidence US doctors were experiencing increasing numbers of lawsuits during 2001-2004.  Over 15 years, states had reported physician insurance premium rates were flat or declined relative to economic and population changes.  The article cited opinions that the problem was not litigation; the problem was malpractice.  However, the AMA is persistent in claiming financial relief is needed. One means they propose is to limit of non-economic damages for pain and suffering nationally to $250,000.

Very recently, American Medical News (amednew.com) issued a summary of 20 new grants issued by the Dept. of Health and Human Services at a cost of $25 million. The grants are to find ways to cut medical errors and improve communication between doctors and patients.  Highlights were:

  • New patient safety programs that include data designed to link with medical liability claims.
  • New York won $3 million to expand and test a judge-directed negotiation program for surgery and obstetrical injured patients.
  • The University of Washington in Seattle won $2.97 million to train physicians, nurses, and pharmacists to communicate.
  • Ohio State University of College of Medicine won $186,214 to establish a statewide database on pregnancy-related deaths for study towards improving outcomes.
  • South Dakota and Sanford Health won $299,995 to develop a state model for collecting medical error data and to design a patient complaint reporting system.

Ironically, the Wall Street Journal article (September 28, 2010) reported physicians were learning from reviewing closed lawsuit claims data. As a result, “Some doctors are using electronic alerts and reminders to order tests, follow-up lab data, and communicate with referral specialists.”

WHY AREN’T THEY ALL DOING THIS?

This June’s Archives of Internal Medicine reported 91% of doctors practice defensive medicine and order too many tests adding huge unnecessary costs to the healthcare system.  The Wall Street Journal article reported a better solution is to  improve larger system failures and prevent errors. Kaiser Permanente uses medical malpractice data for education, but also focuses resources on technology to reduce patient injuries, i.e. close tracking and follow-up of patients with abnormal testing results. The VA is doing the same through an electronic medical record system. This is encouraging.

The insurance company representing Harvard University affiliated hospitals and doctors uses lawsuit data to focus on improvement strategies. Again, from my perspective having worked in the past for a large insurance broker, a statewide project funded by an insurance company, and a medical malpractice insurance company, this is NOTHING NEW.  Out of 456 high severity cases resulting in serious harm to patients, most were diagnostic errors. The insurance executive for the Harvard account is hoping to spur changes in systems and procedures and reduce this finding.

I am hoping he will see results. I trust the headlines will continue to print those results and trends for us to follow.

We can only hope that the coming years will see a dramatic reduction in these preventable medical injuries.

How Dennis Quaid Became a Patient Advocate

Wednesday, April 14th, 2010

On Monday, Dennis Quaid appeared on “The Early Show.” He talked about how he and his wife almost lost their newborn twins in 2007 as a result medical negligence.

According to Quaid, Thomas and Zoe Quaid were supposed to be given the anticoagulant drug, Hep-lock soon after their birth.  Hep-lock is a widely used anticoagulant designed for children. It is not nearly as potent as its adult counterpart, Heparin. By mistake, the newborns were given two doses of Heparin, which is 1,000 times stronger.  Quaid noted that the Heparin administration reduced the consistency of the newborns’ blood to that of water.  There was no justification for administering Heparin instead Hep-lock.

While the newborns managed to survive this ordeal, this experience has transformed Quaid into an active patient advocate. The actor helped create the Quaid Foundation, an organization dedicated to reducing medical errors. According to the article by CBS News:

Quaid has testified to Congress on behalf of patients’ rights, and Monday, he was to speak at the National Press Club to address the problem of dangerous medical mistakes.

The article further notes that the Centers for Disease Control and Prevention estimated that approximately 99,000 deaths every year are due to preventable medical errors. This is shocking to say the least.

Contributing author: Jon Stefanuca