As many as 98,000 Americans die every year as the result of surgical errors and mistakes made by hospitals (misdiagnosis, incorrect dosages, incorrect prescriptions, etc.). The number could be even higher, as many of cases of malpractice are not even reported. Lawsuits arising from medical malpractice are usually long, drawn-out and complex.
One thing that would lead to detection of error and earlier resolution of malpractice cases would be recording of surgical procedures and patient-physician encounters. Technology developed at the University of Toronto is similar to the “black box” recording devices in airplanes and commercial vehicles, and would help patients and doctors alike.
The American Medical Association already recognizes the benefit of recording patient interactions for public use, education, and other purposes. Additionally, medical records are already covered by stringent privacy laws and regulations, so recordings of surgical procedures and other patient interactions would be similarly protected. If more procedures were recorded, patients who are injured by medical negligence would have convincing evidence of malpractice. Likewise, doctors would be protected from frivolous allegations if the recordings showed no error.
Wisconsin lawmakers have proposed “Julie’s Law,” which is named after Julie Ribenzer, a patient who died after a surgeon administered too much anesthetic. Utah should join with states that have laws to allow patients to have their medical procedures to be recorded.
During a trial, the jury’s opinions and impressions about the case are critical. One of the things I learned from my most recent trial was how the jurors weighed the testimony of expert witnesses.
In a malpractice case, the plaintiff will have her experts; the defendant physician will have his. In a lot of cases, jurors will conclude that it is a “tie” because both sides had an expert to back up their case. For a plaintiff, who bears the burden of proof, a “tie” is actually a loss.
This is important because the “tie-breaker” is often the defendant physician himself. Not only does he testify about the factual circumstances of the treatment, but he often goes far beyond that, testifying as an expert on his own behalf.
In a recent decision, a Connecticut appeals court discussed the proper scope of testimony for a defendant physician who is essentially acting as an additional expert witness on his own behalf. It is a valuable reminder of how important it is to be well-prepared for examining doctors who are acting not only as factual witnesses, but as medical experts. A malpractice lawyer needs to be familiar not only with the legal aspects of the case, but also have a strong understanding of the medical issues, relevant literature, and prevailing standards of care.
One of the reasons that medical malpractice occurs so frequently is increased reliance on computerized systems, automatic orders, and inadequate training on the proper use of medical technology and devices.
Thankfully, the healthcare industry is starting to take note. A recent article titled “New Medical Technology Poses Safety Problems if Users not Trained Properly,” published by the online periodical Modern Healthcare, addresses this increasing problem. As the article states:
Recent studies have found that rapid implementation of newmedical technology—electronic health records, patient monitoring devices, surgical robots and other tools —can lead to adverse patient events when it is not thoughtfully integrated into workflow.
Although advances in technology and science have advanced medical care and increased quality in many areas, there is no substitute for conscientious and attentive clinical decision making. Unfortunately, sometimes health care providers rely too heavily on computerized systems and technology, and too little on what each individual patient needs. Add in poor training, and you’ve got a recipe for medical malpractice.
As a medical malpractice attorney, I like to know the insurance defense industry’s tricks. A recent article published by the Monthly Prescribing Reference discusses one of them. The article addresses the frequent failure of health care providers to empathize with patients who have suffered as a result of adverse outcomes and medical malpractice. These “expressions of empathy” are a trick designed to deter people from holding negligent health care providers accountable in court.
Frequently, when I meet with new clients, they tell me about how they went into the hospital for a routine procedure only to wake up hours–or sometimes days–later having suffered a catastrophic injury. While it is true that there can be known, unavoidable complications in medicine, often, the additional injuries are the result of negligence and poor communication among the medical team. Patients feel like insult has been added to injury when none of their doctors will tell them what went wrong.
Health care providers aren’t dumb; they know when they’ve made a mistake. More often than not, if a doctor or other clinician knows that an error was made due to negligence, they get tight-lipped, they do little follow-up, and no matter what, they never tell the patient. People who trusted a professional to provide necessary health care often feel abandoned and start looking for answers to the questions that the doctors just won’t answer. This usually leads to them contacting a medical malpractice lawyer.
Insurance companies and the corporations that run hospitals know this, and they don’t like it. As a result, they have been encouraging physicians and other providers to offer carefully worded statements of “empathy.” As the article puts it, doctors are being “trained to express empathy without admitting fault.” It is rare that a negligent provider will come right out and admit their mistake–I’ve seen it once in hundreds of malpractice cases and in over ten years of practice–but more and more frequently doctors will offer rehearsed speeches designed to discourage injured patients from pursuing a malpractice claim.
They feel safe doing this, because the medical lobby has passed laws designed to keep such statements out of court. In Utah, the law says that “expressions of apology” are inadmissible in court. This so-called “Apology Rule” allows negligent health care providers to say they’re sorry…they just don’t have to mean it.
Fortunately, the Utah Court of Appeals recently narrowed the scope of the Apology Rule. In Lawrence v. MountainStar Healthcare, a nurse negligently administered an injection intravenously (into the vein) instead of subcutaneously (under the skin). After the patient suffered a severe reaction, crying out in pain, vomiting, experiencing heart palpitations, and other symptoms, her treating providers and hospital risk managers admitted a mistake had been made. They even went so far as to say, “[Y]ou don’t have to worry about it. We’ll take care of you. Things are going to be okay”; “You don’t have anything to worry about on your end. We’ll make sure it’s taken care of”; and, “[E]verything is going to be okay. Things will be taken care of.”
Of course, things weren’t taken care of, and the patient had to take the hospital to court. There the hospital’s team of lawyers fought to keep statements acknowledging error and promising to take care of the patient out of court under the Apology Rule, and the jury never heard about them.
Not surprisingly, the patient lost.
But on appeal, the appellate court decided that admissions of fault are not apologies, and the jury should have heard them. This case was a huge victory for injured patients, and helps to minimize the effectiveness of the insurance companies’ “Apology Rule” trick.
A recent article in Utah’s Deseret News suggests that the threat of medical malpractice lawsuits is causing obstetricians to perform unnecessary Cesarean sections. C-sections are a medical procedure where a surgical incision is made through the mother’s abdomen to deliver the baby.
The article restates outdated statistics published by the American Congress of Obstetricians and Gynecologists (ACOG) for the premise that unnecessary C-sections are on the rise. In fact, more recent data shows otherwise. According to another article in USA Today:
[T]he most recent data on C-sections from the Centers for Disease Control and Prevention show that the while the overall C-section rate has not budged much recently after years of increases, the rates at 37 and 38 weeks (for both elective and needed procedures) have fallen.
The threat of unnecessary C-sections being caused by the threat of malpractice lawsuits is false. Holding negligent health care providers actually increases patient safety for everyone. The rates of C-sections are actually declining. Moreover, If obstetricians are performing unnecessary C-sections, they are putting their own interests ahead of the patients. If the procedure is not medically indicated, then that is a breach of the standard of care. Doctors should do what is in the best interest of their patients. Physicians who put their own concerns ahead of their patients are responsible for those decisions, not the lawyers who represent people legitimately harmed by medical malpractice.
In some cases, C-sections are encouraged as “elective” procedures, ostensibly for the benefit of the mother. But in fact, the C-sections and elective inductions are ordered so that physicians can maintain control over their busy schedules and perform more deliveries–thereby generating more revenue–for the physicians and the hospitals. These unnecessary C-sections and inductions frequently lead to serious, yet avoidable complications. These medical errors can cause serious birth injuries. Attorneys who advocate for families who have suffered as a result of obstetrical negligence are not the problem; the problem is the negligence itself.