What Physicians Need to Know about Defenses to Malpractice

Practicing physicians are always vulnerable to malpractice litigation.  The threat of litigation, unfortunately, leads to defensive practice, which in turn adds billions to the cost of healthcare.  Defensive practice is also unsafe for patients.  This fear of litigation affects the daily practice of physicians and also the quality of life outside the clinic.

What constitutes Malpractice?

In order to be held liable for a malpractice suit, there are four elements that need to be proved:

1. The physician had a duty.
2. The physician breached that duty.
3. The patient was harmed.
4. The harm was caused due to the physician’s breach of duty.

The physician cannot be held liable if all the four conditions are not met.  However, there are certain cases where even if the four conditions are met, the physician cannot be held liable for malpractice.

Assumption of Risk

Mrs. Schneider was diagnosed with a breast lump, and was asked to get it surgically removed.  However, she decided to undergo treatment under Dr. Revici, using non-traditional, non-invasive and non-toxic methods.  She subsequently developed breast cancer that spread and required bilateral mastectomy.  Mrs. Schneider sued Dr. Revici for medical malpractice, but the consent forms that were signed by her, stated that she was aware of the risks involved in refusing conventional treatment and agreeing to Dr. Revici’s method of treatment.  The court ruled in favor of Dr. Revici, stating the expressed assumption of risk as a valid defense.

Assumption of risk lies in the adage ‘volenti non fit injuria’– to a willing person, no injury is done.  Under this, the plaintiff’s implied or expressed agreement absolves the defendant from responsibility.  It is very important to communicate the risks involved to the patient and obtain their consent to the line of treatment.  Physicians can reduce the chance of litigation if the patient is aware of the risks, benefits and alternatives before the procedure and then decide to “assume the risk”.

Good Samaritan

Ms. McCain impaled her leg on a rebar at a construction site.  Dr. Baston responded to her call for help and after cleaning the wound, asked her to seek medical care immediately.  However, Ms. McCain waited for a week before going to a clinic and by then she required surgical management for the infected wound.  Dr. Baston was sued by Ms. McCain for poor treatment.  The court did not find Dr. Baston liable for damages, as he had acted as a Good Samaritan.

The Good Samaritan law is made to protect physicians who respond to an emergency situation.  Under this law, a physician responding to an emergency is protected from being held liable for injuries or damages that occur during the emergency.  There are, however, certain caveats in the use of the Good Samaritan law.  It requires the following conditions to be met:

1. The incident is an emergency.
2. The act of rendering care is voluntary.
3. The patient accepts the care received.
4. The care is provided in good faith, intended to help.
5. The care provider receives no remuneration for the care provided.
6. The care provided cannot be grossly negligent.

The Good Samaritan defense was extended to in-hospital settings also, after the McKenna v. Cedars of Lebanon Hospital case.  However, the Good Samaritan defense for in-hospital settings varies from state to state.

Contributory Negligence

Despite being informed by Dr. Hull to delay scalp reduction, Mr. Smith, who underwent hair implants over several years, signed the consent forms and underwent surgery.  Unhappy with the scarring on his head, Mr. Smith sued Dr. Hull for malpractice.  The court ruled in favor of Dr. Hull as according to them, Mr. Smith knowingly underwent the surgery at his own peril, which amounted to contributory negligence.

According to the concept of contributory negligence, a person is responsible for their own action or inaction, which, if contributes to the negligence, then the person should not be awarded damages.  Contributory negligence may be used as a defense when a patient demands procedures or treatments against the physician’s advice.

Comparative fault

Dr. Azzara found Mrs. Ostrowski’s toenail producing draining, red in color and painful to touch.  In the course of her treatment, Dr. Azzara removed he toe nail to facilitate drainage.  However, Mrs. Ostrowski, who was a hypertensive diabetic, had poor weight, diet and health management habit, did not heal and her toe became a non-healing pre-gangrenous wound.  She sued Dr. Azzara and a vascular surgeon testified that removal of the toe nail was unnecessary.  Dr. Azzara, in his defense, was able to prove that Mrs. Ostrowski’s smoking and poor health management contributed to the outcome.  The court found her to be 51% at fault and Dr. Azzara at 49%.  The jury ruled in favor of Dr. Azzara and no damages were awarded.

Comparative fault is similar to comparative negligence, except, that in the case of comparative fault; a patient might be awarded some damages, depending on the percentage of contribution by the patient and the physician to the outcome of the treatment.

What physicians need to know?

Clinical defenses as stated above have been and can be used in malpractice cases, even if the four elements of duty are present.  Physicians need to know about these defenses to optimize and reduce the risk of liability if confronted with a potential malpractice suit, rather than practice defensive medical procedures or treatments.

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References

1. Bowen Berry, J. (2001, January 14). The physician’s guide to medical malpractice. Retrieved January 21, 2016, from http://www.ncbi.nlm.nih.gov: http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1291321/
2. Defenses to Medical Malpractice. (2016). Retrieved January 21, 2016, from http://www.injury.findlaw.com: http://injury.findlaw.com/medical-malpractice/defenses-to-medical-malpractice-patients-negligence.html
3. Michael Jason Hudson, M., & Gregory P. Moore, M. J. (2011). Defenses to Malpractice. Retrieved January 21, 2016, from http://www.medscape.com: http://www.medscape.com/viewarticle/755818
4. Sandy Sanbar, M. P. (2006). Medical Malpractice Defenses. In MedMal Survival Handbook (pp. 257-267).
5. Suszek, A. (2016). Types of Defenses in a Medical Malpractice Case. Retrieved January 21, 2016, from http://www.alllaw.com: http://www.alllaw.com/articles/nolo/medical-malpractice/defense-2.html

Improving Patient Safety the Danish Way

Richard and Susan had no reason to believe that the doctor treating their child would make a mistake.  Yet, when Anna’s fever showed no signs of reducing, they went in for a second opinion, only to learn that Anna had been given the wrong medication.  It took just two days for Anna’s fever to subside with the new medication, but by then she had missed not only 10 days of school, but also her chance of making the cheerleader team, as she also missed out on the trials.  Looking at a distraught Anna, Susan wanted to file a medical malpractice case against the first doctor, but Richard explained that nothing would come out of it.  The cost of filing and pursuing the lawsuit would be more than the compensation, if any, that they would get.  At this point Anna looked up and said that it might have been better if they were living in New Zealand or Denmark.  Richard and Susan were both surprised at her remark and wanted to know why she felt that way.  Anna opened her laptop and showed them an article about Denmark’s approach to medical errors.

A Different Approach

Denmark has a comprehensive national program in place that compensates patients, who are harmed due to medical negligence or malpractice.  The primary focus of this program is to help patients who have been hurt by the health care system.  The compensation program in turn, makes available all data from these claims to hospitals and researchers.  However, this data is not used for rating healthcare facilities and personnel in the public domain, but allows the system to flag healthcare providers who have repeat errors and thus may pose a risk to the patient and the healthcare system.

Started in 1992, Denmark’s compensation program replaced the lawsuit-based approach, which was similar to the system followed in the US.  A series of high profile court cases, where the patients were unable to get compensation because it was too difficult to prove that the doctor did something wrong, triggered the change in the system.  Following the system used in Norway and Sweden, the Danish parliament took action and adopted the compensation program.  Under this system, medical injury claims are reviewed by medical and legal experts, where patients can participate in the review process and get answers, irrespective of whether they get the monetary compensation or not.  There are no charges for filing a compensation review claim and the patient’s are assigned a caseworker to help them through the process.  The detailed response, which the doctor or hospital have to file, can be rebutted by the patients, who have access to their medical records as well as the detailed explanation of the reviewer’s decision, through an online portal.

In case their claim is rejected, the patient may file an appeal, with no cost to the patient.   The appeal is reviewed by a seven member board comprising of doctors, two representatives of the Danish healthcare system, the patients representative and an attorney.  A patient may also request a district court review, although that has happened in just 2 percent of claims.  In case of medical negligence, a patient can file a report with a parallel system for professional discipline.

One of two criteria is most often applied by reviewers to patient claims of medical injury.  The first of these criteria’s is the “specialist rule” – which compares the treatment provided to that which an experienced specialist would provide.  Compensated if the treatment is found lacking, the patient can also be compensated despite the healthcare provider doing a good job, but not up to the specialist level.  The second criteria commonly applied by reviewers is the “fairness rule” –  where the patient is eligible for a compensation, if the patient has experienced a severe medical event that occurs less than 2 percent of the time.  Data shows that about one third of claims filed, result in compensation, paying out an average of $30,000.

The Advantages of this System

• Although the average paid out is just about 15% of the average amount awarded in the US, more than 7 times as many claims are filed per capita in Denmark with 4 times as many patient’s per capita receiving some compensation.
• Although the average compensation amounts may be low, the Government helps in cases of physical disabilities caused due to medical errors, by providing aides to help with the patient’s household chores.
• Patients do not need to have claims running into millions of dollars.  Even claims of a few thousand dollars are worth filing, as there are no costs for pursuing such claims.
• Information and compensation is provided to patients regardless of whether negligence is involved, resulting in providers being open about what took place.  This provides incentive for healthcare providers to apologize to patients, while also report errors that might show a pattern of mistakes.
• About 10 percent of claims filed are by doctors on behalf of their patients.  With no threat of malpractice hanging over their heads, healthcare provides are very helpful to patients who have been harmed.
• Danish healthcare providers are legally required to inform the patient if they have been harmed during their medical care.  The current system makes it possible for healthcare providers to do so, as there is no fear of being sued for monetary compensation.
• Data collected and analyzed helps the healthcare providers to understand patterns of errors and take steps to rectify them.  With no threat of being sued or publicly humiliated, healthcare providers are forthcoming in providing data on mistakes committed by them.

The Danish system of pursuing medical claims is not foolproof, but it has resulted in a better and safer healthcare delivery system.  The program costs Denmark far less than the $10 billion that US providers spend on medical malpractice payouts and administrative costs.  The biggest advantage of the system is that patients and healthcare providers see themselves on the same side of the page, thus building a trust between them, which unfortunately is lacking in the US.

Richard and Susan could find no reason to disagree with Anne’s statement – at least in this case of Anne’s medical fiasco.

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References

1. Allen, O. P. (2016, January 03). How Denmark Dumped Medical Malpractice and Improved Patient Safety. Retrieved January 18, 2016, from http://www.truthdig.com: http://www.truthdig.com/report/item/how_denmark_dumped_medical_malpractice_and_improved_patient_safety_20160103
2. Budryk, Z. (2016, January 11). Medical malpractice overhaul could save millions of dollars and improve patient safety. Retrieved January 18, 2016, from http://www.fiercehealthcare.com: http://www.fiercehealthcare.com/story/medical-malpractice-overhaul-could-save-millions-dollars-and-improve-patien/2016-01-11
3. Transcript: January 25, 2013. (2013, January 25). Retrieved January 18, 2016, from http://www.pbs.org: http://www.pbs.org/wnet/need-to-know/transcripts-full-episode/transcript-january-25-2013/16159/
4. Ulrich, A. (1994). An Evaluation of the Danish No-Fault System for Compensating Medical Injuries. Annals of Health Law , 1-40.

Why Doctors get Sued – the 2015 Malpractice Report

About 4000 primary care physicians and selected specialists were surveyed by Medscape in order to find out about the cause and effects of malpractice suits.

 

Top Reasons Doctors Get Sued

The survey covered areas like, if and why they were sued; the effect on their career and patient care decisions due to the lawsuit; and these doctors were asked to suggest methods to reduce the number of lawsuits.  The report shows the long-term effects, both emotional and financial, of malpractice suits on vulnerable doctors.

Have You Ever Been Named in a Malpractice Suit?

The survey showed that 59% of respondents have been named in at least one malpractice suit.  While nearly half (47%) were named in the suit along with others, 12% were the only parties sued.

Among the specialties surveyed, some were sued more than others; however, no physicians are immune to malpractice suits.

 

Percent of Physicians Sued

According to recent studies, the most likely to be sued among all physicians are obstetricians/ gynecologists and surgeons.  This was collaborated by the Medscape survey which found that 85% of obstetricians/ gynecologists, 83% of general surgeons, and 79% of orthopedists have been sued.  

However, general surgeons and orthopedists had the highest percentage among specialties surveyed of being the only parties named at 23% and 26%, respectively; while obstetricians/ gynecologists came in third at 18%.

Nature of the Lawsuits

Respondents were asked to check as many options as were relevant, to the question about the nature of their lawsuits.  The highest numbers of suits (31%) were related to a failure to diagnose and patient suffering abnormal injuries.  Failure to treat (12%) came in at third place and was far behind the first two.  Less than 5% of respondents cited poor documentation or medication errors (both 4%) or failure to follow safety procedures or obtain informed consent (both 3%).

How Likely Are You to Be Sued By the End of Your Career?

64% of the physicians who responded to this survey had experienced at least one malpractice suit by the time they were 54 years old. With physicians at 60 years of age, this percentage rose to about 80%.  However, those who responded to this question, tended to be in specialties that had a higher likelihood of being sued.  As one respondent in the Medscape survey wrote, “The older you get, the more you have to lose.”

Are Men More Likely to Be Sued Than Women?

While nearly two thirds (64%) of male respondents were sued as compared to less than half of women (49%); men were also sued more as the only named defendant in a suit (14%) as compared to women (8%).

The study indicated that women are sued less than men, regardless of the specialty.

How Often Does Malpractice Treat Influence Thinking or Action?

54% of physicians, who had been named in a lawsuit, responded that the threat of another lawsuit affects them either always, with every patient (18%) or almost all the time (36%).  19% percent were rarely bothered, unless something went wrong with the patient or there was a trigger event.

The survey found that only 1% was never bothered by the possibility of a lawsuit.

Are Medical Organisations Doing  Enough to Reduce Lawsuits

While 24% of physicians felt that medical organizations were active and somewhat successful in reducing lawsuits, the rest felt that these groups were either pretty inactive, or just not doing anything at all.

 

 

Best Ways to Discourage Lawsuits

The survey allowed respondents to choose multiple options for best ways to discourage lawsuits.  81% felt that malpractice cases should be screened by a medical panel for its merit, before they can proceed.  Roughly about half (48%) believed that cases should be tried before a health court.  Among verbal suggestions, unsurprisingly, many urged tort reform.  However, by far the most popular suggestion, particularly among male respondents, was to make the losing side pay.  A larger number of women respondents as compared to the men mentioned improved communication with patients as a way to discourage lawsuits.

Does “Choosing Wisely” Lead to More Lawsuit?

Over a third (37%) of respondents believe that the Choosing Wisely initiative will lead to more lawsuits as compared to 24% who explicitly believe it will not.  The rest are unsure.

 

 

When I Learn That a Case Involved Real Errors, I Think…

Most physicians showed sympathy for colleagues who are sued, even in cases that involve actual errors.

While 64% felt that doctors are human and sometimes make mistakes, 41% admitted that some doctors were negligent and incompetent.

 

I  would Sue Another Doctor Whose Error Harmed Me

While over 25% of oncologists, anaesthesiologists, and radiologists would sue a colleague, only 15% of obstetricians/ gynaecologists and 17% of primary care physicians would do so.

 

Work Setting and Risk for Lawsuit 

Malpractice suits in office-based solo practices (70%) or single-specialty groups (64%) were found to be the highest.  The second lowest percentage (53%) reported were in office-based multispecialty groups. Surprisingly, the least likely to face lawsuits (47%) were outpatient clinics.

 

Were You Surprised to Be Sued?

70% of physicians were surprised when they were sued.Around 27% suspected this threat, whileonly 3% were sure that they would be sued.  This shows the difference in the perception of malpractice between physicians and patients.

 

What Would You Have Done Differently?

More than half of the respondents believed that they would not change anything as their work was as per the standard of care.

 

 

Would Saying “I’m Sorry” Have Helped?

Most physicians reported that they didn’t say sorry because it wasn’t their fault, or they were among many others named and hadn’t even met the plaintiff. Those who reported that they had expressed sorrow said that it would not have made a difference.

 

 

Your Experience of Being Sued

When asked to verbalize their experiences, physicians typically described feelings of betrayal by patients, humiliation, and disillusionment with the legal system. As one physician said, “The evils of human nature on display: greed, dishonesty, corruption. Clever arguments in the court trumps truth.”

Long-term Emotional and Financial Effects of the Lawsuit

While less than half of respondents reported no long-term emotional or financial effects,the malpractice suit had a negative effect on trust for 30% of physicians.Some expressed their desire to improve professional behaviour, more documentation and connecting better with patients.  A large number of physicians mentioned long-term anxiety, depression, and suffering in general as fallout of being sued.

 

Long-term Effects of Being Sued and Tried

Of all of the long-term effects expressed in this survey, perhaps the most disturbing was the negative impact lawsuits have on the physician-patient relationship.  Most physicians said that they had stopped trusting patient’s responses to their quality of work.

 

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References:

1. Peckham, C. (2015). Medscape Malpractice Report 2015: Why Most Doctors Get Sued.

 

 

Malpractice Claims against Anesthesiologists go Southwards

While cumulative spending on malpractice payments against anesthesiologists has decreased in recent years, there has been an increase in the number of claims occurring in outpatient settings, which is consistent with the increase in outpatient anesthesia services.  According to a new study, which included data from the National Practitioner Data Bank, spending on malpractice payments against anesthesiologists has fallen from $174.4 million in 2005 to $91.1 million in 2013.  With increased outpatient utilization, the number of claims for outpatients has increased in comparison to claims for inpatients.  However, as the amounts being paid for outpatient claims are smaller, the overall medical malpractice claims have decreased since 2005.

Presented at the 2015 annual meeting of the American Society of Anesthesiologists, the study examined the change in anesthesia related outpatient malpractice payments.  Using data like patient demographics, payment size and clinical outcome to compare inpatient and outpatient malpractice claims, the researchers included 2,408 anesthesiology related malpractice payments attributed to physician providers.  However, despite the shift towards outpatient services, little is known about the effect of practice setting on malpractice payments in anesthesiology.

According to the findings of the study, out of the 2,408 payments made, 1,841 (76.5%) were for inpatient claims while 567 (23.5%) were for outpatient events.  However, the study found that the frequency of anesthesia related payments decreased over the 9 year study period, with inpatient payments decreasing by 45.5% and outpatient payments decreasing by 24.3%.  Average malpractice payments for anesthesiology related claims was $245,000, however, payments towards inpatient claims were larger ($21,742) as compared to outpatient claim payments ($189,349).

While the study indicated that malpractice payments for inpatients were larger, the percentage of outpatient payments was more out of the total spending.  This is due to the increase in outpatient surgery in the last few years.  The largest claims were for death of the patient in both inpatient and outpatient settings.  However, outpatient claims involved more of minor injuries to the patient.  The majority of claims were from female patients and the average age was between 40 and 59 years.  The study concluded that with the overall spending on malpractice payments reducing by $83.3 million, it meant that anesthetists were on the right track in their practice.

The moderator of the session, however, suggested that the increase in outpatient payments could be attributed to more than just an increase in the number of outpatient procedures.  He stated that an increase in the complexity of outpatient procedures could be pushing up the malpractice payments.  The researchers admitted that one of the drawbacks of the data collected was the lack of detail regarding the claims.  While death was the largest reason, the second largest number of claims was for improper management – which generally includes a large number of malpractice issues.

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References:

1. BRUNK, D. (2015, October 25). Anesthesia-related medical malpractice claims falling in the U.S. Retrieved December 23, 2015, from globalacademycme.com: http://www.globalacademycme.com/conference-news-videos/single-article/anesthesia-related-medical-malpractice-claims-falling-in-the-us/5302d12f55a2fcdadac955bba5af04c4.html
2. DO ANESTHESIOLOGISTS HAVE THE HIGHEST MALPRACTICE INSURANCE RATES? (June, 11). Retrieved December 23, 2015, from 2012: http://theanesthesiaconsultant.com/2012/06/11/do-anesthesiologists-have-the-highest-malpractice-insurance-rates-2/
3. Doyle, C. (2015, December). Medical Malpractice Claims Against Anesthesiologists Decrease and Shift to Outpatient Anesthesia Services . Retrieved December 23, 2015, from anesthesiologynews.com: http://www.anesthesiologynews.com/ViewArticle.aspx?d=Policy%2B%26%2BManagement&d_id=3&i=December+2015&i_id=1256&a_id=34419
4. Nelson, R. (2014, October 13). How Anesthesiologists Reduced Medical Errors by Learning from Malpractice Suits and Adopting New Technology. Retrieved December 23, 2015, from lieffcabraser.com: http://www.lieffcabraser.com/blog/2014/10/reducing-the-cost-of-medical-care-by-learning-from-malpractice-suits.shtml

 

 

Steps for Hospitals to Prevent Malpractice Suits

Hospitals are institutions that a person turns to when they are not well, with the hope that they will be treated and thus become healthy again.  However, there are situations where negligence on the part of the healthcare provider can cause harm to the patient, sometimes even resulting in their death.  This leads to medical malpractice suits being filed against the healthcare provider by the patient or their families.  While the suit may lead to a claim payment or it might not, it does cause a dent in the reputation of the healthcare provider.  Although hospitals make every effort to treat each patient correctly, however, there are many areas where things can go wrong.  A little effort and setting up a series of strategies to combat medical negligence can help healthcare providers avoid medical malpractice suits.

The Journal of the American Medical Association states that medical negligence is the third leading cause of deaths, and more than 85,000 medical malpractice suits are filed in the US every year.  About 12,000 patients lose their lives during an unnecessary surgery, while nearly 7,000 patients die due to medication errors.  The primary cause of medical malpractice suits are prescription mistakes and procedures – these can always be prevented by following some simple yet effective strategies.

Faulty Communication

Patients require explanations.  According to research, patients who feel that their healthcare provider has their best interests at heart are more forgiving of errors.  One of the best ways to mitigate risk is to clearly communicate with the patient and explain what’s important.  However, some circumstances do call for a formal apology, and these should be immediately forthcoming.  In fact, for some patients, it is helpful to know that a doctor has learned from their medical error so that another patient won’t suffer similar consequences.

Patient Consent

Obtaining the consent of the patient for any and all procedures that will be performed (once that a patient has received proper explanations) is crucial.  This also allows the patient to ask further questions in case they are not clear about some part of the treatment.

Being Aware

It is crucial that doctors and other medical staff stay updated with new developments and specialties.  This is especially important as more and more offices transition to having electronic records.

Follow up

A lot of things can happen to tests that are ordered by the doctor.  The patient may not follow through and get the tests done; the tests may not end up with the physician, the doctor may not look at the test results right away.  It is very important to follow up on every level to ensure that there are no mistakes or exclusions in the treatment procedures.  Following up after the visit is also important if a doctor sets up an appointment for their patient with a specialist.

Variations in Policies

When policies and procedures frequently change from physician to physician within one office, it is easy to overlook important details.

Unnecessary Surgeries

Implementing a quality control procedure which consists of a visit by a third party to obtain answers from the patient to a short questionnaire, after they have gone through their medical procedure.  If the patient is happy and satisfied with the medical procedure and says so, their answer can help avoid a malpractice suit in case their condition worsens at a later stage.  The data collected will also help the hospital to understand patterns of substandard care or weed out unresponsive staff.

Reduce Medication Errors

Most medication errors stem from overworked or tired staff.  It is very easy to overlook details when physical and mental tiredness creeps in.  If you cannot increase the staff or decrease the work hours for the existing ones, it would be beneficial to create an oversight department that would be responsible for monitoring and enforcing maximum working shifts for the staff.  A tired mind is a careless mind – make sure that staff have an avenue to refresh and recharge themselves after every few hours.

Finally, a little empathy and a friendly demeanor will go a long way in keeping your patients happy and your hospital away from malpractice suits.

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References:

1. Avoiding Medical Malpractice. (2015, August 19). Retrieved December 23, 2015, from harrell-nowak.com: http://harrell-nowak.com/2015/08/avoiding-medical-malpractice/
2. Frank Sloan, L. C. (2015). From Medical Malpractice to Quality Assurance. Retrieved December 23, 2015, from issues.org: http://issues.org/24-3/sloan/
3. Ocano, S. (2015, August 15). How hospitals can avoid medical malpractice suits. Retrieved December 23, 2015, from businessreviewusa.com: http://www.businessreviewusa.com/finance/5070/How-hospitals-can-avoid-medical-malpractice-suits

 

Defensive Medicine Reduces Chances of Medical Malpractice Claims

According to a study published on November 4, 2015, by the British Medical Journal, medical professionals who spend more resources, time and money on patient tests and procedures, generally get sued less for malpractice / negligence.  The study was conducted by a team of researchers from Harvard Medical School, Stanford University and the University of Southern California.  The researchers state that “defensive medicine” means “doing more for patients because they believe it reduces liability risk.”

Defensive Medicine can Undermine Healthcare Reforms

According to Seth Seabury, one of the authors on the study from the University of Southern California Schaeffer Center for Health Policy and Economics, this lower risk of malpractice liability could undermine healthcare reforms.  The reforms rely on medical professionals to eliminate wasteful spending in healthcare.  However, if the medical professionals start believing that reducing spending might make them more vulnerable to malpractice suits; they will have no incentive to do so.

Data Collected for the Study

Analyzing data from Florida hospitals and malpractice cases, the study confirmed that medical professionals use defensive medicine and that it does protect them from liability.  24,637 physicians, 154,725 physician years and 18,352,391 hospital admissions were involved in the data collection, along with information gathered from 4,342 malpractice claims.  The study found that across specialties, greater average spending by physicians was associated with reduced risk of malpractice claims.  Among interns, the probability of an alleged malpractice incident ranged from 1.5% in the bottom spending fifth to 0.3% in the top spending fifth.  The researchers focused on obstetrics, gathering information from admissions to Florida acute care hospitals between 2000 and 2009, where according to them, the choice of caesarean deliveries was influenced in large by defensive medicine.

The Dangers of Defensive Medicine

According to Tomas J Philipson, professor of Public Policy Studies at the University of Chicago and a healthcare director at the Becker Friedman Institute, the study raises important questions about the costs and benefits of the medical malpractice system.  While it makes medical professionals spend more to avoid liability, this liability comes from bad health outcomes and thus must be weighed against the improvements in patient health that this spending enables – how productive is this additional spending in terms of improving patient outcomes.

According to some professionals in the healthcare industry, defensive medicine has become necessary despite the harm caused by it in the long term.  Dennis Hursh, managing partner of Pennsylvania physician’s law firm Hursh&Hursh PC,  feels that defensive medicine is absolutely required to protect physicians from an out of control judicial system.  According to him, healthcare professionals feel forced to order tests and procedures despite knowing that they will be of marginal value to the patient as any failure to do so might invite a malpractice suit.  He feels that many physicians would forgo these tests and procedures that do not benefit the patient if they did not have the threat of being second guessed by lawyers and judges.

John R Patrick, author of Health Attitude: Unraveling and Solving the Complexities of Healthcare, does not find the outcome of the study surprising.  He believes that it is a logical conclusion, but not necessarily a good thing.  Defensive medicine is driving up the cost of healthcare and with 10,000 people turning 65 years of age everyday and joining Medicare, the cost of current spending per person is becoming prohibitive.  Studies have revealed that the cost of these unnecessary tests and procedures have reached up to $1.5 trillion.  At this given rate the country will go bankrupt if heath care spending is not reduced.

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Reference:

1. University of Southern California, Harvard Medical School and Stanford University. (2015). More Doctor Spending Linked to Fewer Malpractice Risks. British Medical Journal.

Some Common Types of Medical Malpractice

Failure to provide proper healthcare treatment by a doctor, nurse or any other medical professional can lead to medical malpractice cases.  Healthcare professionals are expected to provide you with proper diagnosis, consultation and treatment.  Unfortunately, there are cases where misdiagnosis, poor quality of treatment or wrong treatment, surgical negligence or any other type of error occurs, which can lead to serious consequences for the patient.  It has been found that certain types of errors crop up more often than others.  Listed below are some of the common medical errors that can lead to a medical malpractice suit.

However, before we proceed, a word of caution – just because a medical professional made an error or if you are unhappy with the treatment, doesn’t mean that medical malpractice occurred.  The legal definition of medical malpractice states that the medical professional has been negligent and not provided the same standard of service as laid down by law, which in turn has caused inconvenience or harmed the patient.  It is worth remembering that the onus to prove medical malpractice is on the patient and/or their families.

Delayed or Wrong Diagnosis

Procrastination in diagnosis can result in serious harm, even death for the patient.  In order to treat the patient, the first critical step is correct and timely diagnosis.  Sometimes doctors ignore or dismiss the symptoms that the patient mentions – the doctor might think that the patient simply has a headache, but it might turn out to be a brain tumor.  Unfortunately, misdiagnosis or delayed diagnosis account for a large percentage of medical malpractice cases.

Failure to order Routine Tests

There are standard procedures laid out, which the medical professionals need to follow.  This is true for all types of illness – from a common cold to any life threatening disease.  Failure to order appropriate tests often leads to an improper diagnosis.  This in turn can lead to the patient receiving the wrong treatment or a delay which could have serious consequences for the patient.

Treatment does not seem to Work

You may find that even after prolonged treatment, your medical condition is not improving, or even seems to be getting worse – this may be the time to seek a second opinion.  Most medical professionals hate admitting that they are wrong, and this can lead to a doctor continuing the treatment despite realizing that his diagnosis or treatment may be wrong.  A second opinion could determine if the previous diagnosis/treatment was wrong.

Serious Condition Diagnosed on the Basis of a few Simple Lab Tests

Medical professionals should use a range of tools for diagnosis.  Starting with listening to you as you relate your symptoms, questioning you and going over your previous medical records, blood and urine tests followed by scanning or imaging if required – these are some of the tests that are required to understand what is going on in your body.  Failure to completely and thoroughly examine the patient, or relying on just a few basic diagnostic tests are signs of medical negligence.  Pronouncing a serious condition where none exists will lead to the wrong treatment which may affect the patient adversely.  Even if the patient does not suffer physical damage due to this wrong diagnosis/treatment, they and their families do undergo mental trauma due to this.

The other point to note with lab tests is that labs do make mistakes.  If in doubt, the medical professional should question the lab about the results.  Unfortunately, most medical professional do not question lab results as much as they should.  If you are in doubt, ask your doctor to have the same tests analyzed by a different lab.

Are you being Over Treated?

The doctor knows best – while this may be true, if you think that the treatment recommended for your illness seems far too much than what you really require, it may help to get a second opinion.  Medical treatments are not cheap and unfortunately, cases of over treatment are far too common in recent years.  Invasive testing and surgical procedures should only be used when less invasive methods or basic treatments cannot suffice.  Additionally, you may be a victim of additional treatments to cover up a misdiagnosis or incorrect administration of medicines.  You have the right to ask your healthcare provider to explain the reason for the multiple treatment types.

It is worth remembering that despite having evidence of any medical malpractice you must have damages in order to make a claim against the medical professional.  Damages can include physical damages, emotional damages, or economic damages.  These damages must be the direct result of the medical negligence/malpractice.

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References:

1. Ankin, H. (2015, August 13). 7 Signs You Might Be a Victim of Medical Malpractice. Retrieved December 22, 2015, from ankinlaw.com: http://ankinlaw.com/7-signs-you-might-be-a-victim-of-medical-malpractice/
2. Common Signs Of Medical Malpractice. (2015). Retrieved December 22, 2015, from http://personalinjurybureau.com/: http://personalinjurybureau.com/most-common-signs-of-medical-malpractice/173/
3. Five Signs of Medical Malpractice. (2015). Retrieved December 22, 2015, from law.freeadvice.com: http://law.freeadvice.com/malpractice_law/medical_malpractice/sign-of-medical-malpractice.htm
4. Kathleen Michon, J. (2015). Medical Malpractice: Common Errors by Doctors and Hospitals. Retrieved December 22, 2015, from nolo.com: http://www.nolo.com/legal-encyclopedia/medical-malpractice-common-errors-doctors-hospitals-32289.html

Medical mistakes – the hidden truth

Case 1

Donald Adanich, a 69 year old Vietnam veteran, had gone to Louis Stokes Cleveland VA Medical Center, for a dental implant surgery in February 2014.  It was a routine surgical procedure, one that the medical center had performed countless number of times.  However, post the surgery, Donald found himself feeling very sick, to the extent that Lyn, his wife, took him back to the VA center the very next day after the surgery.  Donald was admitted to the hospital complaining of stomach ache, and upon investigation was found with high fever and an equally high white blood cell count.  Doctors attending to Donald admitted to Lyn that they could not figure out what caused this infection.  Three weeks later, Donald was discharged from the hospital.  Donald still complained of feeling unwell and so Lyn decided to take a second opinion at another hospital.  What she was told by the doctor there left her shocked.

The physician at the second hospital obtained Donald’s medical reports from VA hospital.  The reports also included a document which stated that Donald had swallowed a surgical gauge during the dental implant procedure.  However, this only came to light when Donald was brought back to the hospital.  The doctors there removed the surgical gauge from Donald’s stomach, but did not inform Donald and Lyn about what had taken place.  Sadly, Donald never recovered from his illness and passed away six months later in August 2014.

 Case 2

At the age of 20, Lauren Wargo, then in college, decided to get a mole on her face removed through medical procedure.  In December 2006, she underwent the procedure, which left her with first, second and third degree burns, covering more than half her face.  What should have been a normal and simple procedure; went horribly wrong for her.  The doctor offered no explanation to Lauren’s parents on how this could have happened.

The Wargo’s took the doctor to court and that is when the truth came out.  During the procedure, the doctor failed to inform the anesthetist to switch off the oxygen, when he was using an electrical tool that was capable of igniting a fire.  This resulted in Lauren suffering horrible burns on most of her face.

The Issue

Most hospitals and doctors keep a careful track of medical mistakes.  However, this information is not revealed to the patients, their families or the public.  News Channel5 Investigators have now revealed how deep this culture of secrecy surrounding medical malpractice is.  According to their investigation, numerous government agencies regularly collect data and records of medical mistakes in hospitals.  This data, however, is not revealed to the public.  Nor is it possible for the public to find details about the number and type of medical malpractice cases against specific doctors or hospitals.

The US Congress ordered the creation of a data bank under the National Practitioner Data Bank, where hospitals are required to report any serious disciplinary action that has been taken against medical professionals by them.  The purpose of this data bank is to ensure that medical professionals, who lose their license in one state, cannot start their practice in another.  But, the names of the medical professionals and their employers are not revealed and kept private by law.

This effectively means that a person has no way of knowing if the doctor or hospital where he wants to be treated has been reported for any serious disciplinary action or medical malpractice.  For example, there were 2210 disciplinary actions reported in 2014 in Ohio.  However, the names of the medical professionals against whom these actions were taken are not known to the general public.  So, how does a person living in Ohio get himself treated by a doctor, without a doubt in his mind?

These two cases, are examples of how hospitals and doctors hide their medical mistakes, making it not only difficult for the patients and their families to know the truth, but in a lot of cases, also finding it difficult to get further proper treatment.

The Follow up    

NewsChannel5 Investigators approached the Cleveland VA Medical Center to enquire about Donald’s case.  The spokesperson of the hospital refused to take part in the on-camera interview.  However, he sent them this statement – “The Cleveland VA Medical Center offers our deepest condolences to the Adanich family for their loss.  We will forever be grateful for Mr. Adanich’s service to our nation.”  That is no solace for Lyn, who lost her husband due to the hospitals mistake.

Lauren and her family are still waiting for a simple apology from the doctor – which so far has not been offered.

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References:

1. “Culture of Secrecy”: NewsChannel5 Report Echoes Warnings of Ohio Medical Malpractice Lawyers. (2015, November 13). Retrieved November 17, 2015, from lewlaw.com: http://blog.lewlaw.com/blog/culture-of-secrecy-newschannel5-report-echoes-warnings-of-ohio-medical-practices-lawyers
2. Buduson, S. (2015, November 11). EXCLUSIVE NewsChannel5 Investigation | Culture of Secrecy: How hospitals hide medical malpractice. Retrieved November 18, 2015, from newsnet5.com: http://www.newsnet5.com/news/local-news/investigations/exclusive-newschannel5-investigation-culture-of-secrecy-how-hospitals-hide-medical-malpractice
3. Kiernan, S. (2003, June 15). Breaking the Medical Malpractice Code of Secrecy. Retrieved November 17, 2015, from niemanreports.org: http://niemanreports.org/articles/breaking-the-medical-malpractice-code-of-secrecy/

Guidelines for treating pulmonary hypertension in children

Pulmonary Hypertension in children

Nearly 1 in 500 babies are born with pulmonary hypertension (PH) every year.  Although rare in newborns, pulmonary hypertension is a heart and lung disease with the potential to be fatal.  Children suffering from pulmonary hypertension have blockages in their pulmonary artery.  This makes it difficult for the right ventricle in the heart to pump blood through their lungs.  Although in some cases pulmonary hypertension is caused in isolation due to circulatory problems in the lungs, more often it is due to complications brought on by other serious issues of the heart or lungs.  Congenital heart disease, congenital diaphragmatic hernia, bronchopulmonary dysplasia are some of the issues which cause pulmonary hypertension.

Newborns with congenital heart disease generally suffer from high blood pressure in their lungs.  In many cases the blood pressure normalizes after correcting the heart defect through surgery.  In cases where this does not happen, it becomes harder for the heart to pump.  Although rare, sometimes the pressure is so high that corrective surgery is not possible or is too risky.  Medications and/or oxygen are used to relax the blood vessels – both in the case of post surgery or in case s where surgery has not been possible.

Pulmonary hypertension symptoms include fainting, shortness of breath and cyanosis.  Pulmonary hypertension can lead to death from heart failure, if not diagnosed and managed correctly. Those who survive, suffer from health issues throughout their lives.

The Guidelines

For the first time, guidelines towards the diagnosis and treatment of pulmonary hypertension in children have been laid out and recently published in the journal Circulation.  There have been guideline in place for the treatment of pulmonary hypertension in adults since a long time, but the same cannot be applied to the diagnosis and treatment in children.  It needs to be understood here that the under laying causes for pulmonary hypertension differ amongst adults and children.

Based on data collected from over 600 studies, these guidelines have been created by an interdisciplinary team of 27 physicians.  A result of the collaboration between the American Thoracic Society (ATS) and the American Heart Association (AHA), the guidelines are set as an aim to provide the best medical care to children suffering from pulmonary hypertension.

Some of the key features of the guidelines cover:

• Classification of the different types of pulmonary hypertension;
• Proven and emerging surgical and medical therapies;
• Approved treatments and dosages including their appropriateness;
• Optimal care of the patient;
• Advice on supportive care and the social aspects of care of the patient;
• Advice on exercise and travel restrictions;
• The role of centers specializing in the treatment of pulmonary hypertension in children.

There are gaps in our knowledge about treating pulmonary hypertension in children.  These guidelines point to these gaps; along with offering advice on issues that health care providers and parents of children suffering from pulmonary hypertension find themselves struggling with.  Areas like whether a child should receive antiplatelet blood thinning agents or anticoagulants; parents concerns with safe exercise regime for their children, concerns regarding air travel; these and much more are covered by these guidelines.

The future

The guidelines are a first major step towards developing a proper diagnosis and treatment regime for pulmonary hypertension in children.  However, it is important to remember that further research with more specific data is required to improve the care and treatment of children suffering from pulmonary hypertension.  It is equally important for parents of children suffering from this condition to search and find doctors and care centers that offer better diagnostic and surgery facilities which can include new molecular diagnostics, latest drug therapies and recently developed surgery protocols.

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References:

1. Dunbar Ivy, M., Steven H. Abman, M., Robyn J. Barst, M., Rolf M.F. Berger, M., Damien Bonnet, M., Thomas R. Fleming, P., et al. (2013, December). Pediatric Pulmonary Hypertension. Retrieved November 02, 2015, from JACC Journals: http://content.onlinejacc.org/article.aspx?articleid=1790598
2. First Ever Guidelines for Pediatric Pulmonary Hypertension . (2015, October 27). Retrieved Nvember 02, 2015, from RT Magazine: http://www.rtmagazine.com/2015/10/first-ever-guidelines-for-pediatric-pulmonary-hypertension/
3. Heiner Latus, T. D. (2015, February 03). Treatment of pulmonary arterial hypertension in children. Retrieved November 02, 2015, from NATURE REVIEWS CARDIOLOGY | REVIEW: http://www.nature.com/nrcardio/journal/v12/n4/full/nrcardio.2015.6.html
4. Melvyn Rubenfire, M. F. (2015, September 15). Guidelines for Diagnosis and Treatment of Pulmonary Hypertension . Retrieved November 02, 2015, from American College of Cardiology: https://www.acc.org/latest-in-cardiology/ten-points-to-remember/2015/09/15/15/19/2015-esc-ers-guidelines-for-the-diagnosis-and-treatment-of-ph?w_nav=Tab
5. Rosenthal, M. (2015, October). Guidelines First To Focus on Children With Pulmonary Hypertension. Retrieved November 02, 2015, from Pharmacy Practise News: http://www.pharmacypracticenews.com/ViewArticle.aspx?d=Web+Only&d_id=239&i=October+2015&i_id=1235&a_id=34114

Do you have a Medical Malpractice Case?

Medical negligence is the third leading cause of death in the US, the first two positions being taken by heart disease and cancer, as stated the Journal of the American Medical Association.  As per the Health Grades ‘Patient Safety in Hospitals’ study, about 195,000 patients die each year in the US from preventable in-hospital medical errors.  The largest number of patient safety and medical malpractice cases in the US relate to diagnostic errors.  The scenario seems scary, but if you compare it to the total number of patients treated in the same time frame, the numbers of patient safety malpractice cases become miniscule.  However, this statistic does not hold any meaning if you are one of those who have suffered due to medical negligence.

Do you think that you have a medical malpractice suit if your doctor or the hospital made a mistake during your treatment?  You may or may not – there is a lot more to having a medical malpractice suit than just a patient getting hurt.  Read on, to understand what is required to be proven and then fight your medical malpractice suit.

What is medical malpractice?

Medical malpractice is when your doctor or healthcare professional causes injury or harm to you by either doing or not doing an act during your treatment under them.  Medical negligence is needed to be established for filing of a medical malpractice suit.  The key factors involved are to show that the healthcare professional made a mistake and that mistake has caused you harm.  The key factor here is the ‘standard of care’.  Any action or inaction by the medical professional will be judged against the accepted standard.  This means that there should be a deviation from the general accepted methods used by other healthcare professionals to treat patients under similar circumstances.  This is important because the standards will differ from area to area, across different age groups and previous medical history.

Did the treatment cause further injury?

You may not like the doctor or the healthcare worker because he/she pushed you too hard in order to rehabilitate you or made a mistake by giving you the wrong medication one day.  But that is not enough to file a medical malpractice suit.  In order to be able to bring a medical malpractice suit against the healthcare worker, doctor or medical center, you need to prove that the mistake has caused you harm, injury or further damage.  You also need to prove that this damage is connected to the medical negligence inflicted on you.  In most cases, an expert witness is required to explain how the standard of care was breached and that this negligence is responsible for your injury.

Of course, some cases are easy to establish – the amputation of a wrong limb or the absence of an ‘informed consent,’ by the patient for a medical procedure, are two good examples.  So, in a nutshell, the requirements for filing a medical malpractice suit are:

1. A violation of the standard of care
2. An injury caused by this negligence
3. The injury resulting in significant damages.

Examples of Medical Malpractice

Medical malpractice can take many forms.  Listed below are examples of some common medical negligence that may lead to a medical malpractice case:

• Failure to diagnose or misdiagnosis
• Failure to recognize symptoms
• Failure to order proper testing
• Disregarding or not taking appropriate patient history
• Misreading or ignoring laboratory results
• Improper medication or dosage
• Unnecessary surgery
• Surgical errors or wrong site surgery
• Poor follow-up or aftercare
• Premature discharge

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References:

1. Boeschen, C. (2015). Medical Malpractice Basics. Retrieved October 12, 2015, from Accidents & Injuries > Medical Malpractice: http://www.nolo.com/legal-encyclopedia/medical-malpractice-basics-29855.html
2. Cheeks, D. (2013, May 16). 10 Things You Want To Know About Medical Malpractice. Retrieved October 12, 2015, from Forbes/Personal Finance: http://www.forbes.com/sites/learnvest/2013/05/16/10-things-you-want-to-know-about-medical-malpractice/
3. Do I Have a Medical Malpractice Case? (2015). Retrieved October 12, 2015, from Lawyers.com: http://medical-malpractice.lawyers.com/do-i-have-a-medical-malpractice-case.html?page=2
4. Nordqvist, C. (2014, September 17). What is medical malpractice? Retrieved October 12, 2015, from Medical News: http://www.medicalnewstoday.com/articles/248175.php
5. What is Medical Malpractice? (2015). Retrieved October 12, 2015, from American Board of Professional Liability Attorneys: http://www.abpla.org/what-is-malpractice